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FREEDOM NATIONAL; SLAVERY SECTIONAL. 



SPEECH 



OF 



HON. CHARLES SUMNER, 

OF MASSACHUSETTS, 



ON HIS MOTION TO 



REPEAL THE FUGITIVE SLAVE BILL, 



IN THE SENATE OF THE UNITED STATES, AUGUST 26, 1852. 



If any man thinks that the interest of these Nations and the interest of 
Christianity are two separate and distinct things, I wish my soul may never 
enter into his secret. Oliver CiiOMWELi,. 



BOSTON: 
TICKNOR, REED, AND FIELDS, 

MDCCCLII. 



SI-/ 



61505 



t J5 
^ -» •-» 



THVBSTON, TOKBT, A-ND EMERSON, PBISTERS. 



V 

\ 






SPEECH. 



In the Senate, Wednesday, May, 26th, 1852, on the presentation of a 
Memorial against the Fugitive Slave Bill, the following passage occurred : 

Mr. SUMNER. I hold in my hand, and desire to present, a 
memorial from the representatives of the Society of Friends in New 
England, formally adopted at a public meeting, and authenticated by 
their clerk, in which they ask for the repeal of the Fugitive Slave Bill. 
After setting forth their sentiments on the general subject of slavery, 
the memorialists proceed as follows : 

*' We, therefore, respectfully, but earnestly and sincerely, entreat you to 
repeal the law of the last Congress respecting fugitive slaves; first and princi- 
pally, because of its injustice towards a long sorely-oppressed and deeply- 
injured people ; and, secondly, in order that we, together with other conscien- 
tious sufferers, may be exempted from the penalties which it imposes on all, 
who in faithfulness to their Divine Master, and in discharge of their obliga- 
tions to their distressed fellow-men, feel bound to regulate their conduct, even 
under the heaviest penalties which man can inflict for so doing, by the Divine 
injunction, ' All things whatsoever ye would that men should do to you, do 
you even so to them;' and by the other commandment, 'Thou shalt love 
the Lord tliy God with all thy heart, and thy neighbor as tliyself.'" 

Mr. President, this memorial is commended by the character of the 
religious association from which it proceeds — men who mingle rarely 
in public affairs, but with austere virtue seek to carry the Christian 
rule into life. 

The PRESIDENT. The Chair will have to interpose. The 
Senator is not privileged to enter into a discussion of the subject now. 
The contents of the memorial, simply, are to be stated, and then it 
becomes a question whether it is to be received, if any objection is 
made to its reception. Silence gives consent. After it is received 



he can make a motion with regard to its reference, and then make 
any remarks he thinks proper. 

Mr. SUMNER. I have but a very few words to add, and then I 
propose to move the reference of the memorial to the Committee on 
the Judiciary. 

The PRESIDENT. The memorial has first to be received before 
any motion as to its reference can be entertained. The Senator 
presenting a memorial states distinctly its objects and contents; then 
it is sent to the Chair, if a reference of it is desired. But it is not in 
order to enter into a discussion of the merits of the memorial until it 
has been received. 

Mr. SUMNER. I do not propose to enter into any such discussion 
I have already read one part of the memorial, and it was my design 
merely to refer to the character of the memorialists — a usage which 
I have observed on this floor constantly — to state the course I should 
pursue, and then conclude with a motion for a reference. 

The PRESIDENT. The Chair will hear the Senator, if such is 
the pleasure of the Senate, if he does not go into an elaborate dis- 
cussion. 

Mr. SUMNER. I have no such purpose. 

Mr. DAWSON. Let him be heard. 

Several Senators. Certainly. 

Mr. SUMNER. I observed that this Memorial was commended 
by the character of the religious association from which it proceeds. 
It is commended, also, by its earnest and persuasive tone, and by 
the prayer which it presents. Oflering it now, sir, I desire simply 
to say, that I shall deem it my duty, on some proper occasion here- 
after, to express myself at length on the matter to which it relates. 
Thus far, during this session, I have forborne. With the exception 
of an able speech from my colleague [Mr. Davis] the discussion of 
this all-absorbing question has been mainly left with Senators from 
another quarter of the country, by whose mutual diilerences it has 
been complicated, and between whom I have not cared to interfere. 
But, there is a time for all things. Justice, also, requires that both 
sides should be heard ; and I trust not to expect too much, when, 
at some fit moment, I bespeak the clear and candid attention of the 
Senate, while I undertake to set forth, frankly and fully, and with 
entire respect for this body, convictions, deeply cherished in my own 
State, though disregarded here — to which I am bound by every sen- 
timent of the heart, by every fibre of my being, by all my devotion 



to country, by my love of God and man. But, upon these I do not 
now enter. Suffice it, for the present, to say, that when I shall 
undertake that service, I believe I shall utter nothing which, in any 
just sense, can be called sectional^ unless the Constitution is sec- 
tional, and unless the sentiments of the fathers were sectional. It 
is my happiness to believe, and my hope to be able to show, that, 
according to the true spirit of the Constitution, and according to the 
sentiments of the fathers, freedom, and not slavery, is national ; 
while SLAVERY, and not freedom, is sectional. In duty to the 
petitioners, and with the hope of promoting their prayer, I move 
the reference of their petition to the Committee on the Judiciary. 

A brief debate ensued, in which Messrs. Mangum, Badger, Hale, Clem- 
ens, Dawson, Adams, Butler, and Chase, took part ; and, on motion of Mr. 
Badger, the Memorial was laid on the table. 

On Thursday, 27th July, the subject was again presented by Mr. Sumner 
to the Senate. 

Mr. SUMNER. Mr. President, I have a Resolution which 1 desire 
to offer ; and I wish, also, to give notice that I shall expect to call it 
up to-morrow, at an early moment in the morning hour, when I 
shall throw myself upon the indulgence of the Senate to be heard 
upon it. 

The Resolution was then read, as follows : 

Resolved, That the Committee on the Judiciary be requested to 
consider the expediency of reporting a bill for the immediate repeal 
of the Act of Congress, approved September 18, 1850, usually 
known as the Fugitive Slave Act. 

In pursuance of this notice, on the next day, during the morning hour, an 
attempt was made by Mr. Sumner to call it up. 

Mr. SUMNER. Mr. President, I now ask permission of the 
Senate to take up the Resolution which I otlcred yesterday. For 
that purpose, I move that the prior orders be postponed, and upon 
this motion I desire to say a word. In asking the Senate to take up 
this Resolution for consideration, I say nothing now of its merits, nor 
of the arguments by which it may be maintained ; nor do I at tliis 
stage anticipate any objections to it -on these grounds. AH this will 
properly belong to the discussion of the Resolution itself — the main 
question — when it is actually before the Senate. The single ques- 
tion now is, not the Resolution, but whether I shall be heard upon it. 
1* 



As a Senator, under the responsibilities of my position, I have 
deemed it my duty to offer tliis Resolution. I may seem to have 
postponed this duty to an inconvenient period of the session ; but 
had I attempted it at an earlier day, I might have exposed myself to 
a charge of a different character. It might then have been said 
that, a new-comer and inexperienced in this scene, without delibera- 
tion, hastily, rashly, recklessly, I pushed this question before the 
country. This is not the case now. I have taken time, and in the 
exercise of my most careful discretion now ask the attention of 
the Senate. I shrink from any appeal founded on a trivial per- 
sonal consideration ; but should I be blamed for delay latterly, I 
may add, that though in my seat daily, my bodily health for some 
time past, down to this very week, has not been equal to the service 
I have undertaken. I am not sure that it is now ; but I desire to try. 
And now again I say, the question is simply whether I shall be 
heard. In allowing me this privilege — this right, I might say — 
you do not commit yourselves in any way to the principle of the 
Resolution ; but you merely follow the ordinary usage of the Senate, 
and yield to a brother Senator the opportunity which he craves, in 
the practical discharge of his duty, to express convictions dear to 
his heart, and dear to large numbers of his constituents. For the 
sake of these constituents, for my own sake, I now desire to be 
heard. Make such disposition of my Resolution afterward as to you 
shall seem best; visit upon me any degree of criticism, censure, 
or displeasure, but do not deprive me of a hearing. " Strike, but 
hear." 

A debate ensued, in which Messrs. Mason, Brooke, Charlton, Shields, 
Gwin, Douglas, Butler, and Borland, took part. Objections to taking up the 
Resolution were pressed on the ground of " want of time," the " lateness of 
the session," and "danger to the Union." 

The question being then taken upon the motion by Mr. Sumner to take 
up his Resolution, it was rejected — Yeas 10, Nays 32 — as follows : 

Yeas. — Messrs. Clarke, Davis, Dodge of Wisconsin, Foot, Hamlin, 
Seward, Shields, Sumner, Upham, and Wade — 10. 

Navs. — Messrs. Borland, Brodhead, Brooke, Cass, Charlton, Clemens, 
Desaussure, Dodge of Iowa, Douglas, Downs, Felch, Fish, Geyer, Gwin, 
Hunter, King, Mallory, Mangum, Mason, Meriwether, Miller, Morton, 
Norris, Pearcc, Pratt, Rusk, Sebastian, Smith, Soule, Spruance, Toucey, 
and VVellcr — 32. 



Thursday, August 26, 1852. 

The Civil and Diplomatic Appropriation Bill being under consideration, 
the followinjT amendment was moved by the Committee on Finance. 

" Tluit where the ministerial officers of the United States have or 
shall incur extraordinary expenses in executing the laws thereof, the 
payment of which is not specifically provided for, the President of 
the United States is authorized to allow the payment thereof, under 
the special taxation of the District or Circuit Court of the district in 
which the said services have been or shall be rendered, to be paid 
from the appropriation for defraying the expenses of the judiciary." 

Mr. Sumner moved the following amendment to the amendment : 

" Prooided, That no such allowance shall be authorized for any 
expenses incurred in executing the Act of September 18, 1850, for 
the surrender of fugitives from service or labor ; which said Act is 
hereby repealed." 

On this he took the floor, and spoke as follows : 

Mr. President : — Here is a provision for extraordinary 
expenses incurred in executing the laws of the United States. 
Extraordinary expenses ! Sir, beneath these specious words 
lurks the very subject on which, by a solemn vote of this 
body, I was refused a hearing. Here it is ; no longer open 
to the charge of being an "abstraction," but actually pre- 
sented for practical legislation ; not introduced by me, but by 
one of the important committees of the Senate ; not brought 
forward weeks ago, when there was ample time for discus- 
sion, but only at this moment, without any reference to the 
late period of the session. The amendment, which I now 
offer, proposes to remove one chief occasion of these extra- 
ordinary expenses. And now, at last, among these final 
crowded days of our duties here, but at this earliest opportu- 
nity, I am to be heard ; not as a favor, but as a right. The 
graceful usages of this body may be abandoned, but the 
established privileges of debate cannot be abridged. Parlia- 
mentary courtesy may be forgotten, but parliamentary law 
must prevail. The subject is broadly before the Senate. By 
the blessing of God, it shall be discussed. 

Sir, a severe lawgiver of early Greece vainly sought to se- 



cure permanence for his imperfect institutions, by providing 
that the citizen who, at any time, attempted an alteration or 
repeal of any part thereof, should appear in the public assem- 
bly with a halter about his neck, ready to be drawn if his 
proposition failed to be adopted. A tyrannical spirit among 
us, in unconscious imitation of this antique and discarded 
barbarism, seeks to surround an offensive institution with a 
similar safeguard. In the existing distemper of the public 
mind and at this present juncture, no man can enter upon the 
service which I now undertake, without a personal responsi- 
bility, such as can be sustained only by that sense of duty 
which, under God, is always our best support. That personal 
responsibility I accept. Before the Senate and the country 
let me be held accountable for this act, and for every word 
which I utter. 

With me, sir, there is no alternative. Painfully convinced 
of the unutterable wrongs and woes of slavery ; profoundly 
believing that, according to the true spirit of the Constitution 
and the sentiments of ihe fathers, it can find no place under 
o\xx National Government — that it is in every respect i'cc- 
tional, and in no respect national — that it is always and 
everywhere the creature and dependent of the States, and 
never anywhere the creature or dependent of the Nation, and 
that the Nation can never, by legislative or other act, impart 
to it any support, under the Constitution of the United 
States ; with these convictions, I could not allow this session 
to reach its close, without making or seizing an opportunity 
to declare myself openly against the usurpation, injustice, and 
cruelty, of the late enactment by Congress for the recovery of 
fugitive slaves. Full well I know, sir, the difficulties of this 
discussion, arising from prejudices of opinion and from ad- 
verse conclusions, strong and sincere as my own. Fall well 
I know that I am in a small minority, with few here to whom 
I may look for sympathy or support. Full well I know that 
I must utter things unwelcome to many in this body, which 
I cannot do without pain. Full well I know that the insti- 
tution of slavery in our country, which I now proceed to con- 



sider, is as sensitive as it is powerful — possessing a power to 
shake the whole land with a sensitiveness that shrinks and 
trenfibles at the toneh. But, while things may properly prompt 
me to caution and reserve, they cannot change my duty, or my 
determination to perform it. For this I willingly forget my- 
self, and all personal consequences. The favor and good-will 
of my fellow-citizens, of my 'brethren of the Senate, sir — grate- 
ful to me as it justly is — I am ready, if required, to sacrifice. 
All that I am or may be, I freely offer to this cause. 

And here allow me, for one moment, to refer to myself and 
my position. Sir, I have never been a pohtician. The slave 
of principles, I call no party master. By sentiment, education, 
and conviction, a friend of Human Rights, in their utmost ex- 
pansion, I have ever most sincerely embraced the Democratic 
Idea ; not, indeed, as represented or professed by any party, 
but according to its real significance, as transfigured in the 
Declaration of Independence, and in the injunctions of Chris- 
tianity. In this Idea I saw no narrow advantages merely for 
individuals or classes, but the sovereignty of the people and 
the greatest happiness of all secured by equal laws. Amidst 
the vicissitudes of public aflfairs, I trust always to hold fast to 
this Idea, and to any political party which truly embraces it. 

Party does not constrain me ; nor is my independence les- 
sened by any relations to the office which gives me a title to 
be heard on this floor. And here, sir, I may speak proudly. 
By no effort, by no desire of my own, I find myself a Senator 
of the United States. Never before have I held public oiH(;e 
of any kind. With the ample opportunities of private life I 
was content. No tombstone for me could bear a fairer inscrip- 
tion than this : " Here lies one who, without the honors or 
emoluments of public station, did something for his fellow- 
man." From such simple aspirations I was taken away by 
the free choice of my native Commonwealth, and placed in 
this responsible post of duty, without personal obligation of 
any kind, beyond what was iiiiplird in my life and published 
words. The earnest friends, l)y whose confidence I was first 
designated, asked nothing from me, and, throughout the long 
conflict which ended in my election, rejoiced in the position 



10 

which I most carefully guarded. To all my language was 
uniform, that I did not desire to be brought forward ; that I 
would do nothing to promote the result; that I had no pledges 
or promises to offer ; that the office should seek me, and not I the 
office ; and that it should find me in all respects an indepen- 
dent man, bound to no party and to no human being, but only, 
according to my best judgment, fo act for the good of all. 
Again, sir, I speak with pride, both for myself and others, when 
I add that these avowals found a sympathizing response. In 
this spirit I have come here, and in this spirit I shall speak 
to-day. 

Rejoicing in my independence and claiming nothing from 
party ties, I throw myself upon the candor and magnanimity 
of the Senate. I now ask your attention ; but I trust not to 
abuse it. I may speak strongly ; for I shall speak openly and 
from the strength of my convictions. I may speak warmly ; 
for I shall speak from the heart. But in no event can I forget 
the amenities which belong to debate, and which especially 
become this body. Slavery I' must condemn with my whole 
soul ; but here I need only borrow the language of slaveholders 
themselves ; nor would it accord with my habits or my sense 
of jtistice to exhibit them as the impersonation of the institu- 
tion — Jefferson calls it the " enormity" — which they cherish. 
Of them I do not speak ; but without fear and without favor, 
as without impeachment of any person, I assail this wrong. 
Again, sir, I may err ; but it will be with the Fathers. I plant 
myself on the ancient ways of the Republic, with its grandest 
names, its surest landmarks, and all its original altar-fires 
about me. 

And now, on the very threshold, I encounter the objection 
that there is a final settlement, in principle and substance, of 
the question of Slavery, and that all discussion of it is closed. 
Both the old jiolitical parties of the country, by formal resolu- 
tions, have united in this declaration. On a subject which for 
years has agitated the public mind ; which yet palpitates in 
every heart and burns on every tongue ; which, in its immeas- 
urable importance, dwarfs all other subjects ; which, by its 



11 



constant and gigantic, presence, throws a sliadow across these 
Halls ; which at this very time calls for appropriations to meet 
extraordinary expenses it has caused, they have imposed the 
rule of silence. According to them, sir, we may speak of 
everything except that alone, which is most present in all our 
minds. 

To this combined effort I might fitly reply, that, with flagrant 
inconsistency, it challenges the very discussion which it pre- 
tends to forbid. Such a declaration, on ihe eve of an election, 
is, of course, submitted to the consideration and ratification of 
the people. Debate, inquiry, discussion, are the necessary con- 
sequence. Silence becomes impossible. Slavery, which you 
profess to banish from the public attention, openly by your 
invitation enters every political meeting and every political 
convention. Nay, at this moment it stalks into this Senate, 
crying, like the daughters of the horseleech, " Give! give!" 

Bat no unanimity of politicians can uphold ihe baseless 
assumption, that a law, or any conglomerate of laws, under 
the name of Compromise, or howsoever called, is final. Nothing 
can be plainer than this ; that, by no parliamentary device or 
knot, can any Legislature tie the hands of a succeeding Legis- 
lature, so as to prevent the full exercise of its constitutional 
powers. Each Legislature, under a just sense of its responsi- 
bility, must judge for itself; and, if it think proper, it may 
revise or amend, or absolutely undo the work of its predeces- 
sors. The laws of the Medes and Persians are proverbially 
said to have been unalterable ; but they stand forth in history 
as a single example of such irrational defiance of the true prin- 
ciples of all law. 

To make a law final, so as not to be reached by Congress, 
is, by mere legislation, to fasten a new provision on the Con- 
stitution. Nay, more ; it gives to the law a character which 
the very Constitution does not possess. The wise fathers did 
not treat the country as a Chinese foot, never to grow after 
infancy; but, anticipating Progress, they declared expressly 
that their great Act is not final. According to the Constitu- 
tion itself, there is not one of its existing provisions — not 
even that with regard to fugitives from labor — wiiich may 



12 

not at all times be reached by amendment, and thus be drawn 
into debate. This is rational and just. Sir, nothing from 
man's hands, nor law, nor constitution, can be final. Truth 
alone is final. 

Inconsistent and absurd, this effort is tyrannical also. The 
responsibility for the recent Slave Act and for Slavery every- 
where within the jurisdiction of Congress necessarily involves 
the right to discuss them. To separate these is impossible. 
Like the twenty-fifth rule of the House of Representatives 
against petitions on Slavery — now repealed and dishonored 
— the Compromise, as explained and urged, is a curtailment 
of the actual powers of legislation, and a perpetual denial of 
the indisputable principle that the right to deliberate is co- 
extensive with the responsibility for an act. To sustain 
Slavery, it is now proposed to trample on free speech. In any 
country this would be grievous ; but here, where the Consti- 
tution expressly provides against abridging freedom of speech, 
it is a special outrage. In vain do we condemn the despot- 
isms of Europe, while we borrow the rigors with which they 
repress Liberty, and guard their own uncertain power. For 
myself, in no factious spirit, but solemnly and in loyalty to the 
Constitution, as a Senator of Massachusetts, I protest against 
this wrong. On Slavery, as on every other subject, I claim 
the right to be heard. That right I cannot, I will not aban- 
don. " Give me the liberty to know, to utter and to argue 
freely, above all liberties;" those are the glowing words 
which fiashed from the soul of John Milton, in his struggles 
with English tyranny. With equal fervor they should be 
echoed now by every American, not already a slave. 

But, sir, this effort is impotent as tyrannical. The convic- 
tions of the heart cannot be repressed. The utterances of 
conscience must be .heard. They break forthwith irrepressi- 
ble might. As well attempt to check the tides of Ocean, 
the currents of the Mississippi, or the rushing waters of 
Niagara. The discussion of Slavery will proceed, wherever 
two or three are gathered together — by the fireside, on the 
highway, at the public meeting, in the church. The move- 
ment against Slavery is from the Everlasting^ Arm. Even 



13 

now it is gathering its forces, soon to be confessed everywhere. 
It may not yet be felt in the high places of office and power; 
but all who can pnt their ears harably to the ground, will hear 
and comprehend its incessant and advancing tread. 

The relations of the Government of the United States — I 
speak of the National Government — to Slavery, though plain 
and obvious, are constantly misunderstood. A popular belief 
at this moment makes Slavery a national institution, and, of 
course, renders its support a national duty. The extravagance 
of this error can hardly be surpassed. An institution, which 
our fathers most carefully omitted to name in the Constitution, 
which, according to the debates in the Convention, they re. 
fused to cover with any " sanction," and which, at the original 
organization of the Government, was merely sectional, existing 
nowhere on the national territory, is now above all other things 
blazoned as national. Its supporters plume themselves as 
national. The old political parties, while upholding it, claim 
to be national. A National Whig is simply a Slavery Whig, 
and a National Democrat is simply a Slavery Democrat, in 
contradistinction to all who regard Slavery as a sectional insti- 
tution, within the exclusive control of the States, and with 
which the nation has nothing to do. 

As Slavery assumes to be national, so, by an equally strange 
perversion. Freedom is degraded to be sectional, and all who 
uphold it, under the national Constitution, share this same 
epithet. The honest efforts to secure its blessings, every- 
where within the jurisdiction of Congress, are scouted as 
sectional ; and this cause, which the founders of our National 
Government had so much at heart, is called seclionalism. 
These terms, now belonging to the commonplaces of political 
speech, are adopted and misapplied by most persons without 
reflection. But herein is the power of Slavery. According to 
a curious tradition of the French language, Louis XIV., the 
grand monarch, by an accidental error of speech, among supple 
courtiers, changed the gender of a noun ; but Slavery has done 
more than this. It has changed word for word. It has taught 
2 



14 



many to say national, instead of sectiotial, and sectional instead 
of national. 

Slavery national ! Sir, this is all a mistake and absurdity, 
fit to take a place in some new collection of Vulgar Errors, by 
some other Sir Thomas Browne, with the ancient but ex- 
ploded stories, that the toad has a stone in its head, and that 
ostriches digest iron. According to the true spirit of the Con- 
stitution, and the sentiments of the Fathers, Slavery and not 
Freedom is sectional, while Freedom and not Slavery is na- 
tional. On this unanswerable proposition I take my stand, 
and here commences my argument. 

The subject presents itself under tico principal heads ; First, 
the true relations of the National Government to Slavery, 
wherein it will appear that there is no national fountain out 
of which Slavery can be derived, and no national power, 
under the Constitution, by which it can be supported. En- 
lightened by this general survey, we shall be prepared to 
consider. Secondly, the true nature of the provision for the 
rendition of fug-itives from labor, and herein especially the 
unconstitutional and offensive legislation of Congress in 
pursuance thereof. 

I. And now for the true relations of the National 
Government to Slavery. These will be readily apparent, 
if we do not neglect well-established principles. 

If Slavery be national, if there be any power in the Na- 
tional Government to uphold this institution — as in the recent 
Slave Act — it must be by virtue of the Constitution. Nor 
can it be by mere inference, implication, or conjecture. Ac- 
cording to the uniform admission of courts and jurists in 
Europe, again and again promulgated in our country, Slavery 
can be derived only from clear and special recognition. " The 
state of Slavery," said Lord Mansfield, pronouncing judgment 
in the great case of Somersett, " is of such a nature, that it is 
incapable of being introduced on any reasons moral or polit- 
ical, but only by positive law. It is so odious, that nothing- can 
be suffered to support it but positive law." (Howell's State 
Trials, vol. 20, p. 82.) And a slaveholding tribunal, the Su- 



15 

preme Court of Mississippi, adopting the same principle, has 
said : 

" Slavery is condemned by reason, and the laws of nature. It exists and 
can exist 071/3^ through municipal regulations." — (ZZarry v, Ded-er, Walker, 
R. 42.) 

And another slaveholding tribunal, the Supreme Court of 
Kentucky, has said : 

" We view this as a right existing by positive law of a municipal character, 
without foundation in the law of nature or the unwritten and common law."' — 
{Rankin v. Lijdia, 2 Marshall, 470.) 

Of course every power to uphold Slavery must have an origin 
as distinct as that of Slavery itself Every presumption must 
be as strong against such a power as against Slavery. A 
power so peculiar and offensive, so hostile to reason, so repug- 
nant to the law of nature and the inborn Rights of Man ; 
which despoils its victims of the fruits of their labor ; which 
substitutes concubinage for marriage ; which abrogates the 
relation of parent and child ; which, by a denial of education, 
abases the intellect, prevents a true knowledge of God, and 
murders the very soul; which, amidst a plausible physical 
comfort, degrades man, created in the divine image, to the 
level of a beast ; — such a power, so eminent, so transcendent, 
so tyrannical, so unjust, can find no place in any system of 
Government, unless by virtue of positive sanction. It can 
spring from no doubtful phrases. It must be declared by un- 
ambiguous words, incapable of a double sense. 

Slavery, I now repeat, is not mentioned in the Constitution. 
The name Slave docs not pollute this Charter of our Liberties. 
No " positive " language gives to Congress any povjer to make 
a Slave or to hunt a Slave. To find even any seeming sanc- 
tion for either, we must travel, with doubtful footsteps, beyond 
its express letter, into the region of interpretation. But here 
are rules which cannot be disobeyed. With electric might for 
Freedom, they send a pervasive influence through every pro- 
vision, clause, and word of the Constitution. Each and all 
make Slavery impossible as a national institution. They 
efface from the Constitution every fountain out of whicli it 
can be derived. 



16 

Firfst and foremost, is the Preamble. This discloses the 
prevailing objects and principles of the Constitution. This is 
the vestibule through which all must pass, who would enter 
the sacred temple. Here are the inscriptions by which they 
are earliest impressed. Here they first catch the genius of 
the place. Here the proclamation of Liberty is soonest heard. 
" We the People of the United States," says the Preamble, 
"in order to form a more perfect Union, establish justice, in- 
sure domestic tranquillity, provide for the common defence, 
promote the general welfare, and secure the blessings of Liberty 
to ourselves and our posterity, do ordain and establish this 
Constitution for the United States of America." Thus, ac- 
cording to undeniable words, the Constitution was ordained, 
not to establish, secure, or sanction Slavery — not to promote 
the special interests of slaveholders — not to make Slavery 
national, in any way, form, or manner; but to "establish jus- 
tice," " promote the general welfare," and " secure the bless- 
ings of Liberty." Here surely Liberty is national. 

Secondly. Next in importance to the Preamble are the explicit 
contemporaneous declarations in the Convention which framed 
the Constitution, and elsewhere, expressed in different forms of 
language, but all tending to the same conclusion. By the 
Preamble, the Constitution speaks for Freedom. By these 
declarations, the Fathers speak as the Constitution speaks. 
Early in the Convention, Governeur Morris, of Pennsylvania, 
broke forth in the language of an Abolitionist: '■'■ He never 
would concur in upholding domestic slavery. It was a nefarious 
institution. It was the curse of Heaven on the State where it 
prevailed." Oliver Ellsworth, of Connecticut, said : " The 
morality or wisdom of Slavery are considerations belonging to 
the States themselves." According to him, Slavery was 
sectional. 

At a later day, a discussion ensued on the clause touching 
the African slave trade, which reveals the definitive purposes 
of the Convention. From the report of Mr. Madison we learn 
what was said. Elbridge Gerry, of Massachusetts, " thought 
we had nothing to do with the conduct of the States as to 
Slavery, but tec ought to be careful not to give any sanction to 



17 

lY." According to these words, he regarded Slavery as sec- 
tional, and Avould not make it national. Roger Sherman, 
of Connecticut, "was opposed to any tax on slaves imported, 
as making the matter worse, because it implied they ivere pro- 
pertijP He would not have Slavery national. After debate, 
the subject was committed to a committee of eleven, who 
subsequently reported a substitute, authorizing "a tax on such 
migration or importation, at a rate not exceeding the average of 
duties laid on imports.''^ This language, classifying persons 
with merchandise, seemed to imply a recognition that they 
were property. Mr. Sherman at once declared himself " against 
this part, as acknowledging men to be property, by taxing them 
as such under the character of slaves." Mr. Gorham " thought 
Mr. Sherman should consider the duty not as implying that 
slaves are property, hnt as a discouragement to the importation 
of them." Mr. Madison, in mild juridical phrase, ^^ thought it 
ivrong to admit in the Constitution the idea that there could be 
property in man.^^ After discussion it was finally agreed to 
make the clause read : 

" But a tax or duty may be imposed on such importation, not exceeding tea 
dollars /'^r each person.^' 

The ditficulty seemed then to be removed, and the whole . 
clause was adopted. This record demonstrates that the word 
" persons " was employed in order to show that slaves, every- 
where under the Constitution, were always to be regarded as 
persons, and not as pi-operty, and thus to exclude from the 
Constitution all idea that there can be property in man. Re- 
member well, that Mr. Sherman was opposed to the clause 
in its original form, "as acknowledging men to be property;^'' 
that Mr. Madison was also opposed to it, because he "thought 
it wrong to admit in the Constitnlion the idea that there could 
be property in man;" and that, after these obje^^tions, the 
clause was so amended as to exclude the idea. But Slavery 
cannot be national, unless this idea is distinctly and unequivo- 
cally admitted into the Constitution. 

Nor is this all. In the Massachusetts Convention, to which 
the Constitution, when completed, was submitted for ratifica- 
tion, a veteran of the Revolution, General Heath, openly de- 



18 

clared that, according to his view, Slavery was sectional, and 
not national. His language was pointed. " I apprehend," he 
says, " that it is not in our power to do anylhing for or 
against those inlio are in Slavery in the Southern States. No 
gentleman within these walls detests every idea of Slavery 
more than I do ; it is generally detested by people of this 
Commonwealth ; and I ardently hope the time will soon come, 
when our brethren in the Southern States will view it as we 
do, and put a stop to it ; but to this we have no right to com- 
pel them. Two questions naturally arise : If ive ratify the 
Constitution, shall 7ve do anything by our act to hold the blacks 
in slavery — or shall we become partakers in other men''s sins 2 
I think neither of them" 

Afterwards, in the first Congress under the Constitution, on 
a motion which was much debated, to introduce into the Im- 
post Bill a duty on the importation of Slaves, the same Roger 
Sherman, who in the National Convention had opposed the 
idea of property in man, authoritatively exposed the true rela- 
tions of the Constitution to Slavery. His language was, that 
" The Constitution does not consider these persons as property; 
it speaks of them as persons." 

Thus distinctly and constantly, from the very lips of the 
framers of the Constitution, we learn the falsehood of the 
recent assumptions in favor of Slavery and in derogation of 
Freedom. 

Thirdly. According to a familiar rule of interpretation, all 
laws concerning the same matter, in pari materia, are to be con- 
strued together. By the same reason, the grand political acts 
of the Nation are to be construed together, giving and receiving 
light from each other. Earlier Ihau the Constitution was the 
Declaration of Independence, embodying, in immortal words, 
those primal truths to which our country pledged itself with 
its baptismal vows as a Nation. " We hold these truths to be 
self-evident," says the Nation, " that all mcni are created equal, 
that they are endowed by their Creator with certain unaliena- 
ble rights; that among them are life, liberty, and the pursuit of 
happiness; that to secure these rights governments are insti- 
tuted among men, deriving their just powers from the consent 



10 

of the governed." But this docs not stand alone. There is 
another national act of similar import. On the successful 
close of the Revolution, the Continental Congress, in an ad- 
dress to the people, repeated the same lofty truth. " Let it be 
remembered," said the Nation again, "that it has ever been 
the pride and the boast of America, that the rights for ivhich 
she has contended ivere the rights of human nature. By the 
blessing of the Author of these rights, they have prevailed over 
all opposition, and form the basis of thirteen independent 
States." Such were the acts of the Nation in its united 
capacity. Whatever may be the privileges of States in their 
individual capacities, within their several local jurisdictions, 
no power can be attributed to the Nation, in the absence 
of positive, unequivocal grant, inconsistent with these two 
national declarations. Here, sir, is the national heart, the 
national soul, the national will, the national voice, which must 
inspire our interpretation of the Constitution, and enter into 
and diffuse itself through all the national legislation. Thus 
again is Freedom national. 

Fourthly. Beyond these is a principle of the common law, 
clear, and indisputable, a supreme rule of interpretation from 
which in this case there can be no appeal. In any question 
under the Constitution every ivord is to be construed in favor 
of liberty. This rule, which commends itself to the natural 
reason, is sustained by time-honored maxims of our early 
jurisprudence. Blackstonc aptly expresses it, when he says, 
that " The law is always ready to catch at anything in favor 
of liberty." (2 Black. Comm. 94.) The rule is repeated in 
various forms. Favorcs ampliandi sunt; odia restringenda. 
Favors are to be amplified ; hateful things to be restrained. 
Lex Anglice est lex misericordia. The law of England is a 
law of mercy. Anglice jura in oinni casu libertati dant favorem. 
The laws of England in every case show favor to liberty. 
And this sentiment breaks forth in natural, though intense, 
force, in the maxim: Impius el crudelis judicandus est qui liber- 
tati non favct. He is to be adjudged impious and cruel who 
does not favor liberty. Reading the Constitution in the ad- 
monition of these rules, again I say Freedom is national. 



20 

Fiffhl'/. From a learned judge of the Supreme Court of the 
United States, in an opinion of the Court, we derive the same 
lesson. In considering the question, whether a State can 
prohibit the importation of slaves as merchandise, and whether 
Congress, in the exercise of its power to regulate commerce 
among the States, can interfere with the slave-trade between 
the States, a principle has been enunciated, which, while pro- 
tecting the trade from any intervention of Congress declares 
openly that the Constitution acts upon no man as property. 
Mr. Justice McLean says : " If slaves are considered in some 
of the States as merchandise, that cannot divest them of the 
leading and controlling quality of persons by which they are 
designated in the Constitution. The character of property is 
given them by the local law. This law is respected, and all 
rights under it are protected by the Federal authorities ; but 
the Constitution acts vpon slaves as persons, and not as 
property. * * * " The power over Slavery belongs to the 
States respectively. It is local in its character, and in its 
effects." {Groves v. Slaughter, 15 Peters, R. 507.) Here 
again Slavery is sectional, while Freedom is national. 

Sir, such briefly are the rules of interpretation which, as 
applied to the Constitution, fill it with the breath of- Freedom, 

Driving far off" each thing of sin and guilt. 
To the history and prevailing sentiments of the times we 
may turn for further assurance. In the Spirit of Freedom the 
Constitution was formed. In this spirit our Fathers always 
spoke and acted. In this spirit the National Government was 
first organized under AYashington. And here I recall a scene, 
in itself a touchstone of the period, and an example for us, 
upon which we may look with pure national ]H-ide, while we 
learn anew the relations of the National Government to 

Slavery. 

The Revolution had been accomplished. The feeble Gov- 
ernment of the Confederation had passed away. The Con- 
stitution, slowly matured in a National Convention, discussed 
before the people, defended by masterly pens, had been already 
adopted. The thurteen States stood forth a nation, wherein 
was unity without consolidation, and diversity without dis- 



21 

cord. The hopes of all were anxiously hanging upon the new 
order of things and the mighty procession of events. With 
signal unanimity Washington was chosen President. Leaving 
his home at Mount Vernon, he repaired to New York, where 
the first Congress had already commenced its session, to 
assume his place as elected Chief of the Republic. On the 
thirtieth of April, 1789, the organization of the Government 
was completed by his inauguration. Entering the Senate 
Chamber, where the two Houses were assembled, he was in- 
formed that they awaited his readiness to receive the oath of 
office. Without delay, attended by the Senators and Repre- 
sentatives, with friends and men of mark gathered about him, 
he moved to the balcony in front of the edifice. A countless 
multitude, thronging the open street, and eagerly watching this 
great espousal, 

With reverence look on his majestic face, 
Proud to be less, but of his god-like race. 
The oath was administered by the Chancellor of New York. 
At this time, and in this presence, beneath the uncovered 
heavens, Washington first took this vow upon his lips : " I do 
solemnly swear that I will faithfully execute the office of 
President of the United States, and will to the best of my 
ability, preserve, protect, and defend the Constitution of the 
United States." 

Over the President, on this high occasion, floated the Na- 
tional Flag, with its stripes of red, and its stars on a field 
of blue. As his patriot eyes rested upon the glowing ensign, 
what currents must have rushed swiftly through his soul! 
In the early days of the Revolution, in those darkest hours 
about Boston, after the battle of Bunker Hill, and before the 
Declaration of Independence, the thirteen stripes had been 
first unfurled by him, as the emblem of Union among the 
Colonies for the sake of Freedom. By him, at that time, they 
had been named the Union Flag. Trial, struggle, and war, 
were now ended, and the Union, which they first heralded, 
was unalterably established. To every beholder, these memo- 
ries must have been full of pride and consolation. But look- 
ing back upon the scene, there is one circumstance which, 



22 

more than all its other associations, fills the soul ; more even 
than the suggestions of Union, which I prize so much. At 

THIS MOMENT, WHEN WASHINGTON TOOK HIS FIRST OATH TO 

SUPPORT THE Constitution of the United States, the 
National Ensign, nowhere avithin the National Terri- 
tory, covered a single slave. Then, indeed, was Slavery 
sectional, and Freedom national. 

On the sea, an execrable piracy, the trade in slaves, was 
still, to the national scandal, tolerated under the national flag. 
In the States, as a sectional institution, beneath the shelter of 
local laws. Slavery unhajjpily found a home. But in the only 
territories at this time belonging to the Nation, the broad region 
of the North-west, it had already, by the Ordinance of Free- 
dom, been nriade impossible, even before the adoption of the 
Constitution. The District of Columbia, with its fatal incum- 
brance, had not yet been acquired. 

The Government thus organized was Anti- Slavery in char- 
acter. Washington was a slave-holder ; but it would be unjust 
to his memory not to say that he was an abolitionist also. His 
opinions do not admit of question. Only a short time before 
the formation of the National Constitution, he had declared, 
by letter, " That it was among his first wishes to see some plan 
adopted, by which Slavery may be abolished by law;" and 
again, in another letter, " That, in support of any legislative 
measure for the abolition of slavery, his suflrage should not be 
wanting;" and still further, in conversation with a distin- 
guished European Abolitionist, a travelling propagandist of 
Freedom, Brissot de Warville, recently welcomed to Mount 
Vernon, he had openly announced, that to promote this object 
in Virginia, " He desired the formation of a Society, and 
that he would second it." By this authentic testimony, he 
takes his place with the early patrons of Abolition societies. 

By the side of Washington, as standing beneath the national 
flag he swore to support the Constitution, were illustrious 
men, whose lives and recorded words now rise in judgment. 
There was John Adams, the Vice-President — great vindicator 
and final negotiator of our national independence — whose 
soul, flaming with freedom, broke forth in the early declaration, 



23 

that " Consenting to Slavery is a sacrilegious breach of trust," 
and whose immitigable hostility to this wrong has been made 
immortal in his descendants. There also was a companion 
in arms, and attached friend of incomparable genius, the yet 
youthful Hamilton, who, as a member of the Abolition Society 
of New York, had only recently united in a solemn petition 
for those who, " though free bij the laws of God, are held in 
Slavery by the lairs of the Stated There, too, was a noble 
spirit, the ornament of his country, the exemplar of truth and 
virtue, who, like the sun, ever held an unerring course, John 
Jay. Filling the important post of Minister of Foreign Affairs 
under the Confederation, he found time to organize the Abo- 
lition Society of New York, and to act as its President, until, 
by the nomination of Washington, he became Chief Justice of 
the United States. In his sight. Slavery was an " iniquity," 
" a sin of crimson dye," against which, ministers of the gospel 
should testify, and which the Government should seek in every 
way to abolish. " Were I in the Legislature," he wrote, " I 
would present a bill for this purpose with great care, and I 
would never cease moving it till it became a law, or I ceased 
to be a member. Till America comes into this measure, her 
prayers to heaven will be impious." 

But they were not alone. The convictions and earnest 
aspirations of the country were with them. At the North 
these were broad and general. At the South they found fervid 
utterance from slaveholders. By early and precocious efforts 
for " total emancipation," the Author of the Declaration of 
Independence placed himself foremost among the Abolition- 
ists of the land. In language now familiar to all, and which 
can never die, he perj)etually denounced Slavery. He exposed 
its pernicious influences upon master as well as slave ; declared 
that the love of justice^ and the love of country pleaded equally 
for the slave, and that the " Abolition of domestic slavery was 
the greatest object of desire." He believed that the " sacred 
side was gaining daily recruits," and confidently looked to 
the young for the accomplishment of this good work. In fitful 
sympathy with Jefferson, was another honored son of Virginia, 
the Orator of Liberty, Patrick Henry, w^lio, while confessing 



24 

that he was a master of slaves, said: " I will not, I cannot 
justify it. However culpable my conduct, I will so far pay 
my devoir to virtue, as to own the excellence and rectitude of 
her precepts, and lament my want of conformity to them." 
At this very period, in the Legislature of Maryland, on a bill 
for the relief of oppressed slaves, a young man, afterwards by 
his consummate learning and forensic powers, the acknow- 
ledged head of the American bar, William Pinkney, in a speech 
of earnest, truthful eloquence — better far for his memory than 
his transcendent professional fame — branded Slavery as "ini- 
quitious and most dishonorable ; " " founded in a disgraceful 
traffic;" "as shameful in its continuance as in its origin;" 
and he openly declared, that, " By the eternal principles of 
natural justice, no master in the State has a right to hold his 
slave in bondage a single hour." 

Thus at this time spoke the Nation. The Church also 
joined its voice. And here, amidst the diversities of religious 
faith, it is instructive to observe the general accord. The 
Quakers first bore their testimony. At the adoption of the 
Constitution, their whole body, under the early teaching of 
George Fox, and by the crowning exertions of Benezet and 
Woolman, had become an organized band of Abolitionists, 
penetrated by the conviction that it was unlawful to hold a 
fellow-man in bondage. The Methodists, numerous, earnest, 
and faithful, never ceased by their preachers to proclaim the 
same truth. Their rules in 1788 denounced, in formal lan- 
guage, "the buying or selling of bodies and souls of men, 
women, and children, with an intention to enslave them." 
The words of their great apostle, John Wesley, were constantly 
repeated. On the eve of the National Convention the burning 
tract was circulated, in which he exposes American slavery as 
the "vilest" of the world — "such Slavery as is not found 
among the Turks at Algiers ; " and, after declaring " Liberty 
the birthright of every human creature, of which no human 
law can deprive him," he pleads, " If, therefore, you have any 
regard to justice, (to say nothing of mercy or the revealed 
law of God,) render unto all their due. Give liberty to whom 
liberty is due, that is, to every child of man, to every partaker 



25 



of human nature." At the same time, the Presbyterians, a 
powerful religious body, inspired by the principles of John 
Calvin, in more moderate language, but by a public act, re- 
corded their judgment, recommending "to all the people under 
their care to use the most prudent measures consistent with 
the interest and the state of civil society, to jirocure eventually 
the final abolition of Slaver >j in America. ^^ The Congregation- 
alists of New-England, also of the faith of John Calvin, and 
with the hatred of Slavery belonging to the great non- 
conformist, Richard Baxter, were sternly united against this 
wrong. As early as 1776, Samuel Hopkins, their eminent 
leader and divine, published his tract, showing it to be the 
Duty and Interest of the American States to Emancipate all 
their African slaves, and declaring that " Slavery is in every 
instance wrong, unrighteous, and oppressive — a very great 
and crying sin — there being nothing of the kind equal to it 
on the face of the earth." And, in 1791, shortly after the 
adoption of the Constitution, the second Jonathan Edwards, 
a twice-honored name, in an elaborate discourse often pub- 
lished, called upon his country, "in the present blaze of light" 
on the injustice of slavery, to prepare the way for " its total 
abolition." This he gladly thought at hand. " If we judge 
of the future by the past," said the celebrated preacher, 
" within fifty years from this time, it will be as shameful for 
a man to hold a negro slave, as to be guilty of common rob- 
bery or theft." 

Thus, at this time, the Church, in harmony with the Nation, 
by its leading denominations, Quakers, Methodists, Presl)yte- 
rians, and Congregationalists, thundered against Slavery. 
The Colleges were in unison with the Church. Harvard 
University spoke by the voice of Massachusette, which had 
already abolished Slavery. Dartmouth College, by one of its 
learned Professors, claimed for the slaves " equal privileges 
with the whites." Yale College, by its President, the eminent 
divine, Ezra Stiles, became the head of the Abolition Society 
of Connecticut. And the University of William and INIary, 
in Virginia, testified its sympathy with this cause at this very 
time, by conferring upon Granville Sharpe, the acknowledged 
3 



26 

chief of British Abolitionists, the honorary degree of Doctor 
of Laws. 

The Literature of the land, such as then existed, agreed 
with the Nation, the Church and the College. Franklin, in 
the last literary labor of his life ; Jefferson, in his Notes on 
Virginia ; Barlow, in his measured verse ; Rush, in a work 
which inspired the praise of Clarkson ; the ingenious author 
of the Algerine Captive — the earliest American novel, and 
though now but little known, one of the earliest American 
books republished in London — were all moved by the con- 
templation of Slavery. " If our fellow-citizens of the South- 
ern States are deaf to the pleadings of nature," the latter 
exclaims in his work, " I will conjure them, for the sake of 
consistency, to cease to deprive their fellow-creatures of free- 
dom, which their writers, their orators, representatives, and 
senators, and even their Constitution of Government, have 
declared to be the inalienable birthright of man." A female 
writer and poet, earliest in our country among the graceful 
throng, Sarah Wentworth Morton, at the very period of the 
National Convention admired by the polite society in which 
she lived, poured forth her sympathies also. The generous 
labors of John Jay in behalf of the crushed African inspired 
her muse ; and, in another poem, commemorating a slave, who 
fell while vindicating his Freedom, she rendered a truthful 
homage to his inalienable rights, in words which I now quote 
as part of the testimony of the times : 

" Does not the voice of reason cry, 

' Claim the first right that Nature gave ; 

From the red scourge of bondage fly, 
Nor deign to live a burdened slave ? ' " 

Such, sir, tit the adoption of the Constitution and at the 
first organization of the National Government, was the out- 
spoken, unequivocal heart of the country. Slavery was ab- 
horred. Like the slave trade, it was regarded as temporary ; 
and, by many, it was supposed that they would both disappear 
together. As the oracles ceased or grew mute at the coming 
of Christ, and a voice was heard, crying to mariners at sea, 
" Great Pan is dead," so at this time Slavery became dumb, 



27 

and its death seemed to be near. Voices of Freedom filk^d 
the air. The patriot, the Christian, the scholar, the writer, the 
poet, vied in loyalty to this cause. All were Abolitionists. 

Glance now at the earliest Congress under the Constitution. 
From various quarters memorials were presented to this body 
against Slavery. Among these was one from the Abolition 
Society of Virginia, wherein Slavery is pronounced " not only 
an odious degradation, but an outrageous violation of one of 
the most essential rights of human nature, and utterly repug- 
nant to the precepts of the Gospel." Still another, of a more 
important character, came from the Abolition Society of 
Pennsylvania, and was signed by Benjamin Franklin, as 
President. This venerable man, whose active life had been 
devoted to the welfare of mankind at home and abroad — 
who, both as philosopher and statesman, had arrested the ad- 
miration of the world — who had ravished the lightning from 
the skies and the sceptre from a tyrant — who, as a member 
of the Continental Congress, had set his name to the Declara- 
tion of Independence, and, as a member of the National 
Convention, had again set his name to the Constitution — in 
whom more, perhaps, than in any other person, was embodied 
the true spirit of American institutions, at once practical and 
humane — than whom no one could be more familiar with the 
purposes and aspirations of the founders — this veteran, eighty- 
four years of age, within a few months of his death, now 
appeared by petition at the bar of that Congress, whose pow- 
ers he had helped to define and establish. This was the 
last political act of his long life. Listen to the prayer of 
Franklin : 

" Your memorialists, particularly engaged in attending to the distresses 
arising from Slavery, believe it to bo their indispensable duty to present this 
subject to your notice. They have observed with real satisfaction that many 
important and salutary powers are vested in you for promoting the welfare and 
securing the blessings of liberty to the people of the United States ; and as 
they conceive that these blessings ought rightfully to be administered, without 
disdnclion of color to all descriptions of people, so tliey indulge themselves in the 
pleasing expectation, that nothing which can be done for the relief of the unhappy 
objects of their care, will be either omitted or delayed!''' " Under these im- 
pressions, they earnestly entreat your serious attention to the subject of Slavery ; 



28 

tlwt you lOouJd be -pleased to countenance the restoration of liberty to those un- 
happy men, who alone, in this land of Freedom, are degraded into perpetual 
bondage, and who, amidst the general joy of surrounding freemen, are groaning 
in servile subjection ; that you will promote mercy and justice towards this 
distressed race, and that you will step to the very verge of the power vested in 
you for DISCOURAGING every species of traffic in the persons of our fellow- 
men.''' 

Important words ! in themselves a key-note of the times. 
From his grave Franklin seems still to call upon Congress to 
step to the very verge of the ponders vested in it to discourage 
Slavery ; and, in making this prayer, he proclaims the true 
national policy of the Fathers. Not encouragement but dis- 
couragement of Slavery was their rule. 

Sir, enough has been said to show the sentiment which, like 
a vital air, surrounded the National Government as it stepped 
into being. In the face of this history, and in the absence of 
any positive sanction, it is absurd to suppose that Slavery, 
which under the Confederation was merely sectional, was 
now constituted a national institution. Our fathers did not 
say with the apostate angel, " Evil be thou my good! " In a 
different spirit they cried out to Slavery, " Get thee behind 
me, Satan ! " 

But there is yet another link in the argument. In the 
discussions which took place in the local conventions on the 
adoption of the Constitution, a sensitive desire was manifested 
to surround all persons under the Constitution with additional 
safeguards. Fears were expressed, from the supposed indefi- 
niteness of some of the powers conceded to the National 
Government, and also from the absence of a Bill of Rights. 
Massachusetts, on ratifying the Constitution, proposed a series 
of amendments, at the head of which was this, characterized 
by Samuel Adams, in the Convention, as " A summary of a 
Bill of Rights : " 

" That it be explicitly declared, that all powers not expressly delegated by 
the aforesaid Constitution are reserved to the several Slates, to be by them 
exercised." 

Virginia, South Carolina, and North Carolina, with minorities 
in Pennsylvania and Maryland, united in tliis proposition. In 



29 

pursuance of these recommendations, the first Congress pre- 
sented for adoption the following article, which, being ratified 
by a proper number of States, became part of the Constitu- 
tion, as the 10th amendment: 

" The powers not delegated to the United States by the Constitution, nor 
prohibited by it to the States, are reserved to the States respectively, or to the 
people." 

Stronger words could not be employed to limit the power 
under the Constitution, and to protect the people from all 
assumptions of the National Government, particularli/ in dero- 
g-ation of Freedom. Its guardian character commended it to 
the sagacious mind of Jefferson, who said : " I consider the 
foundation corner-stone of the Constitution of the United 
States to be laid upon the tenth article of the amendments." 
And Samuel Adams, ever watchful for Freedom, said : " It 
removes a doubt which many have entertained respecting the 
matter, gives assurance that, if any law made by the Federal 
Government shall be extended beyond the power granted by 
the Constitution, and inconsistent with the Constitution of 
this State, it will be an error, and adjudged by the courts of 
law to be void." 

Beyond all question, the National Government, ordained by 
the Constitution, is not general or universal ; but special and 
particular. It is a Government of limited powers. It has no 
power which is not delegated. Especially is this clear with 
regard to an institution like Slavery. The Constitution con- 
tains no power to make a King or to support kingly rule. 
With similar reason it may be said, that it contains no power 
to make a slave or to support a system of Slavery. The 
absence of all such power is hardly more clear in one case 
than in the other. But if there be no such power, all national 
legislation upholding Slavery must be unconstitutional and 
void. The stream cannot be higher than the fountain-head. 
Nay more, nothing- can come out of nothing ; the stream can- 
not exist, if there be no springs from which it is fed. 

At the risk of repetition, but for the sake of clearness, review 
now this argument, and gather it together. Considering that 
3* 



30 

Slavery is of such an offensive character that it can find sanc- 
tion only in " positive law," and that it has no such " positive " 
sanction in the Constitution ; that the Constitution, according 
to its Preamble, was ordained " to establish justice " and " se- 
cure the blessings of liberty; " that, in the Convention which 
framed it, and also elsewhere at the time, it was declared not 
to sanction Slavery ; that, according to the Declaration of 
Independence and the Address of the Continental Congress, 
the Nation was dedicated to " liberty " and the " rights of hu- 
man nature ; " that, according to the principles of the common 
law, the Constitution must be interpreted openly, actively, and 
perpetually, for Freedom ; that, according to the decision of the 
Supreme Court, it acts upon slaves, not as property, but as 
PERSONS ; thai, at the first organization of the National Gov- 
ernment under Washington, Slavery had no national favor, 
existed nowhere on the national territory beneath the na- 
tional flag, but was openly condemned by the Nation, the 
Church, the Colleges, and Literature of the time ; and, finally, 
that according to an Amendment of the Constitution, the 
National Government can only exercise powers delegated to 
it, among which there is none to support Slavery : considering 
these things, sir, it is impossible to avoid the single conclusion 
that Slavery is in no respect a national institution, and that 
the Constitution nowhere upholds property in man. 

But there is one other special provision of the Constitution, 
which I have reserved to this stage, not so much from its 
superior importance, but because it may fitly stand by itself. 
This alone, if practically applied, would carry Freedom to all 
within its influence. It is an amendment jiroposed by the first 
Congress, as follows : 

" No person shall be deprived of life, liberti/, or property, loithout 
due process of law.'''' 

Under this irgis the liberty of every person within the national 
jurisdiction is unequivocally placed. I say every person. Of 
this there can be no question. The word "person" in the 
Constitution embraces every human being within its sphere, 
whether Caucasian, Indian, or African, from the President to 



31 

the slave. Show me a person, no matter what his condition, 
or race, or color, within the national jurisdiction, and I confi- 
dently claim for him this protection. The natural meaning of 
the clause is clear, but a single fact of its history places it in 
the broad light of noon. As originally recommended by North 
Carolina and Virginia, it was restrained to the freeman. Its 
language was, " No freeman ought to be deprived of his life, 
liberty, or property, but by the law of the land." In rejecting 
this limitation, the authors of the amendment revealed their 
purpose, that no person, under the National Government, of 
whatever character, shall be deprived of liberty without due 
process of law ; that is, without due presentment, indictment, 
or other judicial proceedings. Here by this Amendment is an 
express guaranty of a Personal Liberty, and an express pro- 
hibition against its invasion anywhere, at least within the 
national jurisdiction. 

Sir, apply these principles, and Slavery will again be as 
when Washington took his first oath as President. The 
Union Flag of the Republic will become once more the flag 
of Freedom, and at all points within the national jurisdiction 
will refuse to cover a slave. Beneath its beneficent folds, 
wherever it is carried, on land or sea. Slavery will disappear, 
like darkness under the arrows of the ascending sun — like the 
Spirit of Evil before the Angel of the Lord. 

In all national territories Slavery will be impossible. 

On the high seas, under the national flag. Slavery will be 
impossible. 

In the District of Columbia Slavery will instantly cease. 

Inspired by these principles. Congress can give no sanction 
to Slavery by the admission of new Slave States. 

Nowhere under the Constitution, can the Nation, by legis- 
lation or otherwise, support Slavery, hunt slaves, or hold 
property in man. 

Such, sir, are my sincere convictions. According to the 
Constitution, as I understand it, in the light of tiie Past and 
of its true principles, there is no other conclusion whieli is 
rational or tenable ; which does not defy the authoritative rules 
of interpretation ; which does not falsify indisputable facts of 



32 

history ; which does not affront the public opinion in which it 
had its birth ; and which does not dishonor the memory of the 
Fathers. And yet these convictions are now placed under 
formal ban by politicians of the hour. The generous senti- 
ments which filled the early patriots, and which impressed 
upon the Government they founded, as upon the coin they 
circulated, the image and superscription of Liberty, have lost 
their power. The slave-masters, few in number, amounting to 
about 300,000, according to the recent census, have succeeded 
in dictating the policy of the National Government, and have 
written Slavery on its front. And now an arrogant and 
unrelenting ostracism is applied, not only to all who ex- 
press themselves against Slavery, but |o every man who is 
unwilling to be the menial of Slavery. A novel test for office 
is introduced, which would have excluded all the Fathers of 
the Republic — even Washington, Jefferson, and Franklin! 
Yes, sir. Startling it may be, but indisputable. Could these 
revered demigods of history once again descend upon earth, 
and mingle in our affairs, not one of them could receive a 
nomination from the National Convention of either of the 
two old political parties! Out of the convictions of their 
hearts and the utterances of their lips against Slavery they 
would be condemned. 

This single fact reveals the extent to which the National 
Government has departed from its true course and it's great 
examples. For myself, I know no better aim under the Con- 
stitution, than to bring the Government back to the precise 
position on this question which it occupied on the auspicious 
morning of its first organization under Washington ; 

Cursus iterare 

Relictos ; 

• that the sentiments of the Fathers may again prevail with 
our rulers, and that the National Flag may nowhere shelter 
Slavery. 

To such as count this aspiration unreasonable, let me com- 
mend a renowned and life-giving precedent of English history. 
As early as the days of Queen Elizabeth, a courtier had 



33 

boasted that the air of England was too pure for a slave to 
breathe, and the common law was said to forbid Slavery. 
And yet in the face of this vaunt, kindred to that of our 
Fathers, and so truly honorable, slaves were introduced from 
the West Indies. The custom of slavery gradually prevailed. 
Its positive legality was affirmed, in professional opinions, by 
two eminent lawyers, Talbot and Yorke, each afterwards Lord 
Chancellor. It was also affirmed on the bench by the latter 
as Lord Hardwicke. England was already a Slave State. 
The following advertisement, copied from a London newspa- 
per, the Public Advertiser^ of Nov. 22d, 1769, shows that the 
journals there were disfigured as some of ours, even in the 
District of Columbia : 

" To be sold, a black girlj the property of J. B., eleven years of age, who is 
extremely handy, works at her needle tolerably, and speaks English perfectly 
well ; is of an excellent temper and willing disposition. Enquire of her Owner 
at the Angel Inn, behind St. Clement's Church, in the Strand." 

At last, only three years after this advertisement, in 1772, the 
single question of the legality of Slavery was presented to 
Lord Mansfield, on a writ of Habeas Corpus. A poor negro, 
named Somersett, brought to England as a slave, became ill, 
and with an inhumanity disgraceful even to Slavery, was 
turned adrift upon the world. Through the charity of an esti- 
mable man, the eminent Abolitionist, Granville Sharpe, he was 
restored to health, when his unfeeling and avaricious master 
again claimed him as a bondman. The claim was repelled. 
After an elaborate and protracted discussion in Westminster 
Hall, marked by rare learning and ability, Lord Mansfield, 
with discreditable reluctance, sullying his great judicial name, 
but in trembling obedience to the genius of the British Consti- 
tution, pronounced a decree which made the early boast a prac- 
tical verity, and rendered Slavery forever impossible in England. 
More than fifteen thousand persons, at that time held as slaves 
in English air — four times as many as are now found in this 
District — stepped forth in the happiness and dignity of 
freemen. 

With this guiding example let us not despair. The time 
will yet come when the boast of our Fathers will be made a 



34 

practical verity also, and Court or Congress, in the spirit of 
this British judgment, will proudly declare that nowhere under 
the Constitution can man hold property in man. For the Re- 
public such a decree will be the way of peace and safety. As 
Slavery is banished from the national jurisdiction, it will cease 
to vex our national politics. It may linger in the States as a 
local institution ; but it will no longer engender national ani- 
mosities, when it no longer demands national support. 

11. From this general review of the relations of the National 
Government to Slavery, I pass to the consideration of the true 

NATURE OF THE PROVISION FOR THE SURRENDER OF FUGITIVES 

FROM LABOR, embracing an examination of this provision in the 
Constitution, and especially of the recent act of Congress in 
pursuance thereof. And here, as I begin this discussion, let 
me bespeak anew your candor. Not in prejudice, but in the 
light of history and of reason, let us consider this subject. The 
way will then be easy and the conclusion certain. 

Much error arises from the exaggerated importance now 
attached to this provision, and from the assumptions with re- 
gard to its origin and primitive character. It is often asserted 
that it was suggested by some special difTiculty, which had 
become practically and extensively felt, anterior to the Consti- 
tution. But this is one of the myths or fables with which the 
supporters of Slavery have surrounded their false god. In the 
Articles of Confederation, while provision is made for the sur- 
render of fugitive criminals, nothing is said of fugitive slaves or 
criminals ; and there is no evidence in any quarter, until after 
the National Convention, of any hardship or solicitude on this 
account. No previous voice was heard to express desire for 
any ])rovision on the subject. The story to the contrary is a 
modern fiction. 

I put aside as equally fabulous the common saying that this 
provision was one of the original compromises of the Consti- 
tution, and an essential condition of Union. Though sanc- 
tioned by eminent judicial opinions, it will be found that this 
statement has been hastily made, without any support in the 
records of the Conwntion, the only authentic evidence of the 



35 

compromises ; nor will it be easy to find any authority for it 
in any contemporary document, speech, published letter or 
pamphlet of any kind. It is true that there were compromises 
at the formation of the Constitution, which were the subject of 
anxious debate ; but this was not of them. 

There was a compromise between the small and large 
States, by which equality was secured to all the States in the 
Senate. There was another compromise finally carried, under 
threats from the South, on the motion of a Neio England mem- 
ber, by which the Slave States were allowed Representatives 
according to the whole number of free persons, and "three-fifths 
of all other persons," thus securing political power on account 
of their slaves, in consideration that direct taxes should be 
apportioned in the same way. Direct taxes have been imposed 
at only four brief intervals. The political power has been 
constant, and, at this moment, sends twenty-one members to 
the other House. 

There was a third compromise, which cannot be mentioned 
without shame. It was that hateful bargain by which Con- 
gress were restrained until 1808 from the prohibition of the 
foreign slave trade, thus securing, down to that period, tolera- 
tion for crime. This was pertinaciously pressed by the South, 
even to the extent of an absolute restraint on Congress. John 
Rutledge said : " If the Convention thinks North Carolina, 
South Carolina, and Georgia, will ever agree to this plan [the 
Federal Constitution] unless their right to import slaves be 
untouched, the expectation is vain.' The people of those 
States will never be such fools as to give up so important an 
interest." Charles Pinckney said : " South Carolina can never 
receive the plan [of the Constitution] if it prohibits the slave 
trade." Charles Cotesworth Pinckney " thought himself bound 
to declare candidly that he did not think South Carolina 
would stop her importation of slaves in any short time." The 
cfii-ontery of the slave-holders was matched by the sordidness 
of the Eastern members, who yielded again. Luther Martin, 
the eminent member of the Convention, in his contemporary 
address to the Legislature of Maryland, has described the 
compromise. " I found," he says, " that the Eastern members, 



36 

notwithstanding their aversion to slavery, were very willing to 
indulge the Southern States, at least with a temporary lil)erty 
to prosecute the slave trade, provided the Southern States would 
in their turn gratify them, by laying no restriction on navigation 
aclsP The bargain was struck, and at this price the Southern 
States gained the detestable indulgence. At a subsequent 
day. Congress branded the slave trade as piracy, and thus, by 
solemn legislative act, adjudged this compromise to be felo- 
nious and wicked. 

Such are the three chief original compromises of the Con- 
stitution and essential conditions of Union. The case of fugi- 
tives from labor is not of these. During the Convention, it 
was not in any way associated with these. Nor is there any 
evidence, from the records of this body, that the provision on 
this subject was regarded with any peculiar interest. As its 
absence from the Articles of Confederation had not been the 
occasion of solicitude or desire, anterior to the National Con- 
vention, so it did not enter into any of the original plans of 
the Constitution. It was introduced at a late period of the 
Convention, and with very little and most casual discussion 
adopted. A few facts will show how unfounded are the recent 
assiimptions. 

The National Convention was convoked to meet at Phila- 
delphia on the second Monday in May, 1787. Several mem- 
bers appeared at this time; but a majority of the States not 
being represented, those present adjourned from day to day 
until the 25th, when the Convention was organized by the 
choice of George Washington, as President. On the 28rh, a 
few brief rules and orders were adopted. On the next day 
they commenced their great work. 

On this day Edmund Randolph, of slaveholding Virginia, 
laid before the Convention a series of sixteen resolutions, con- 
taining his plan for the establishment of a new National Gov- 
ernment. Here was no allusion to fugitive slaves. 

On the same day, Charles Pinckney, of slaveholding South 
Carolina, laid before the Convention what is called " A draft 
of a Federal Government, to be agreed upon between the free 
and independent States of America," an elaborate paper, 



37 

marked by considerable minuteness of detail. Here arc pro- 
visions, borrowed from the Articles of Confederation, securing 
to citizens of each State equal privileges in the several States; 
giving faith to the public records of the States ; and ordain- 
ing the surrender of fugitives from justice. But this draft, 
though from the flaming guardian of the slave-interest, con- 
tained no allusion to fugitive slaves. 

In the course of the Convention other plans were brought 
for\vard ; on the 15th of June a series of eleven propositions 
by Mr. Patterson, of New Jersey, " so as to render the Federal 
Constitution adequate to the exigencies of Government, and 
the preservation of the Union ; " on the 18th of June, eleven 
propositions by Mr. Hamilton, of New York, "containing his 
ideas of a suitable plan of Government for the United States;" 
and on the 19th June, Mr. Randolph's resolutions, originally 
offered on the 29th May, " as altered, amended, and agreed to 
in Committee of the Whole House." On the 26th, twenty- 
three resolutions, already adopted on different days in the 
Convention, were referred to a " Committee of Detail," to be 
reduced to the form of a Constitution. On the 6th August 
this committee reported the finished draft; of a Constitution. 
And yet in all these resolutions, plans, and drafts, seven in 
number, proceeding from eminent members and from able 
committees, no allusion was made to fugitive slaves. For 
three months the Convention was in session, and not a word 
uttered on this subject. 

At last, on the 28th August, as the Convention was drawing 
to a close, on the consideration of the article providing for the 
privileges of citizens in different States, we meet the first 
reference to this matter, in words worthy of note : » Gen. 
[Charles Cotesworth] Pinckney was not satisfied with it. He 
SEEMED to wish some provision should be included in favor 
of property in slaves." But he made no proposition. Unwil- 
ling to shock the Convention, and uncertain in his own mind, 
he only .yecAwei/ to wish such a provision. In this vague ex- 
pression of a vague desire this idea first a])p(vired. In this 
modest, hesitating phrase is the germ of the audacious, unhes- 
itating Slave Act. Here is the little vapor, which has since 
4 



38 

swollen, as in the Arabian tale, to the power and dimensions 
of a giant. The next article under discussion provided for 
the surrender of fugitives from justice. Mr. Butler and Mr. 
Charles Pinckney, both from South Carolina, now moved 
openly to require "fugitive slaves and servants' to be delivered 
up like criminals." Here was no disguise. With Hamlet it 
was now said in spirit — 

Seems, madam, nay, it is; 1 know not seems. 

But the very boldness of the effort drew attention and opposi- 
tion. Mr. Wilson, of Pennsylvania, at once objected : " This 
would oblige the Executive of the State to do it at the public 
expense." Mr. Sherman, of Connecticut, " saw no more pro- 
priety in the public seizing and surrendering a slave or servant, 
than a horse." Under the pressure of these objections, the 
offensive proposition was quietly withdrawn. The article for 
the surrender of criminals was then adopted. On the next 
day, August 29th, profiting by the suggestions already made, 
Mr. Butler moved a proposition — substantially like that now 
found in the Constitution — not directly for the surrender of 
"fugitive slaves," as originally proposed, but of "fugitives 
from service or labor," which, without debate or opposition of 
anv kind, was unanimously adopted. 

The provision, which showed itself thus tardily, and was so 
slightly noticed in the National Convention, was neglected in 
much of the contemporaneous discussions before the people. 
In the Conventions of South Carolina, North Carolina, and 
Virginia, it was commended as securing important rights, 
though on this point there was a diftenMice of opinion. In the 
Virginia Convention, an eminent character, Mr. George Mason, 
with others, expressly declared that there was "no security of 
property coming within this section." In the other Conven- 
tions it was disregarded. Massachusetts, while exhibiting 
peculiar sensitiveness at any responsibility for Slavery, seemed 
to view it with unconcern. The Federalist, (No. 42,) in its 
classification of the powers of Congress, describes and groups 
a large number as those " which provide for the harmony and 
proper intercourse among the States," and therein speaks of 



39 

the power over public records, standing next in the Constitu- 
tion to the provision on fugitives from labor ; but it fails to 
recognise the latter among the means of promoting that "har- 
mony and proper intercourse ; " nor does it anywhere allude to 
the provision. 

The indifference which had thus far attended this subject, 
still continued. The earliest act of Congress, passed in 1793, 
drew little attention. It was not originally suggested by any 
difficulty or anxiety, touching fugitives from labor; nor is there 
any record of the times, in debate or otherwise, showing that 
any special importance was attached to its provisions in this 
regard. The attention of Congress had been directed to fugi- 
tives from justice, and, with little deliberation, it undertook, in 
the same bill, to provide for both classes of cases. In this 
accidental manner was legislation on this subject first at- 
tempted. 

There is no evidence that fugitives w^ere often seized under 
this act. From a competent inquirer we learn that twenty-six 
years elapsed before a single slave was surrendered under it in 
any Free State. It is certain that, in a case at Boston, towards 
the close of the last century, illustrated by Josiah Quincy as 
counsel, the crowd about the magistrate, at the examination, 
quietly and spontaneously opened a way for the fugitive, and 
thus the Act failed to be executed. It is also certain that, in 
Vermont, at the beginning of the century, a Judge of the Su- 
preme Court of this State, on application for the surrender of 
an alleged slave, accompanied by documentary evidence, re- 
fused to comjily, unless the master could sJioio a Bill of Sale 
from the AlmiglUi/. But even these cases passed without 
public comment. 

In 1801, the subject was introduced in the House of Repre- 
sentatives, by an effort for another Act, which, on considera- 
tion, was rejected. At a later day, in 1817 -'18, though still 
disregarded by the country, it seemed to excite a short-lived 
interest in Congress. A bill to provide more effectually " for 
reclaiming servants and slaves, escaping from one State into 
another," was introduced into the House of Representatives 
by Mr. Pindall, of Virginia, was considered for several days in 



46 

Committee of the Whole, amended and passed by this body. 
In the Senate, after much attention and warm debate, it was 
also passed with amendments. But on its return to the House 
for the adoption of the amendments, it was dropped. This 
effort, which, in the discussions of this subject, has thus far 
been unnoticed, is chiefly remarkable as the earliest recorded 
evidence of the unwarrantable assertion, now so common, that 
this provision was originally of vital importance to the peace 
and harmony of the country. 

At last, in 1850, we have another Act, passed by both Houses 
of Congress, and approved by the President, familiarly known 
as the Fugitive Slave Bill. As I read this statute, I am tilled 
with painful emotions. The masterly subtlety with which it 
is drawn, might challenge admiration, if exerted for a benevo- 
lent purpose ; but in the age of sensibility and refinement, a 
machine of torture, however skilful and apt, cannot be regarded 
without horror. Sir, in the name of the Constitution which 
it violates ; of my country which it dishonors ; of Humanity 
which it degrades ; of Christianity which it offends ; I arraign 
this enactment, and now hold it up to the judgment of the 
Senate and the world. Again, I shrink from no responsibility. 
I may seem to stand alone ; but all the patriots and martyrs of 
history, all the Fathers of the Republic, are with me. Sir, 
there is no attribute of God which does not unite against this 
Act. 

But I am to regard it now chiefly as an infringement' of the 
Constitution. And here its outrages, flagrant as manifold, 
assume the deepest dye and broadest chara(;ter only when we 
consider that by its language it is not restrained to any special 
race or class, to the African or to the person with African 
b|ood ; but that any inhabitant of the United States, of what- 
ever complexion or condition, may be its victim. Without 
discrimination of color even, and in violation of every presump- 
tion of freedom, the Act surrenders all, who may be claimed 
as " owing service or labor " to the same tyrannical proceedings. 
If there be any, whose sympathies are not moved for the slave, 
who do not cherisii the rights of the humble African, struggling 
for divine Freedom, as warmly as the rights of the white man, 



41 

let Jiim consider well that the rights of all are equally assailed. 
" Nephew," said Algernon Sidney in prison, on the night be- 
fore his execution, " I value not my own life a chip ; but what 
concerns me is, that the law which takes away my life may 
hang every one of you, whenever it is thought convenient." 

Though thus comprehensive in its provisions and applicable 
to all, there is no safeguard of Human Freedom which the 
monster Act does not set at naught. 

It commits this great question — than which none is more 
sacred in the law — not to a solemn trial ; but to summary 
proceedings. 

It commits this question — not to one of the high tribunals 
of the land — but to the unaided judgment of a single petty 
magistrate. 

It commits this question to a magistrate, appointed, not by 
the President with the consent of the Senate, but by the Court ; 
holding his office, not during good behavior, but merely during 
the will of the Court ; and receiving, not a regular salary, but 
fees according to each individual case. 

It authorizes judgment on ex parte evidence, by affidavits, 
without the sanction of cross-examination. 

It denies the writ of Habeas Corpus, ever known as the 
Palladium of the citizen. 

Contrary to the declared purposes of the framers of the Con- 
stitution, it sends the fugitive back " at the public expense." 

Adding meanness to the violation of the Constitution, it 
bribes the Commissioner by a double stipend to pronounce 
against Freedom. If he dooms a man to Slavery, the reward 
is ten dollars ; but, saving him to Freedom, his dole is five 
dollars. 

The Constitution expressly secures the "free exercise of 
religion;" but this Act visits with unrelenting penalties the 
faithful men and women, who may render to the fugitive that 
countenance, succor, and shelter, which in their conscience 
"religion" seems to require. 

As it is for the pubfic weal that there should be an end of 
suits, so by the consent of civilized nations, these must be 
instituted within fixed limitations of time; but this Act, ex- 
4» 



42 

alting Slavery above even this practical principle of universal 
justice, ordains proceedings against Freedom without any 
reference to the lapse of time. 

Glancing only at these points, and not stopping for argu- 
ment, vindication, or illustration, I come at once upon the two 
chief radical objections to this Act, identical in principle with 
those brought by our fathers against the British Stamp Act ; 
first, that it is an usurpation by Congress of powers not granted 
by the Constitution, and an infraction of rights secured to the 
States ; and, secondly^ that it takes away Trial by Jury in a 
question of Personal Liberty and a suit at common law. 
Either of these objections, if sustained, strikes at the very 
root of the Act. That it is obnoxious to both, seems beyond 
doubt. 

But here, at this stage, I encounter the difficulty, that these 
objections have been already foreclosed by the legislation of 
Congress and by the decisions of the Supreme Court ; that as 
early as 1793 Congress assumed power over this subject by an 
Act, which failed to secure Trial by Jury, and that the validity 
of this Act under the Constitution has been affirmed by the 
Supreme Court. On examination this difficulty will disap- 
pear. 

The Act of 1793 proceeded from a Congress that had 
already recognised the United States Bank, chartered by a 
previous Congress, which, though sanctioned by the Supreme 
Court, has been since in high quarters pronounced unconsti- 
tutional. If it erred as to the Bank, it may have erred also as 
to fugitives from labor. But tlu^ very Act contains a capital 
error on this very subject, so declared by the Supreme Court, 
in pretending to vest a portion of the judicial power of the 
Nation in State officers. This error takes from the Act all 
authority as an interpretation of the Constitution. I dismiss 
it. 

The decisions of the Supreme Court are entitled to great 
consideration, and will not be mentioned by me except with 
respect. Among the memories of my youth are happy days 
in which I sat at the feet of this tribunal, while Mausuall 



43 

presided, with Story by his side. The pressure now proceeds 
from the case of Prig-g- v. Pennsylvania, (16 Peters, 539,) 
wherein the power of Congress over this matter is asserted. 
Without going into any minute criticism of this judgment, or 
considering the extent to which it is extra-judicial, and there- 
fore of no binding force, all which has been already done at 
the bar in one State, and by an able court in another ; but 
conceding to it a certain degree of weight as a rule to the 
judiciary on this particular point, still it does not touch the 
grave question arising from the denial of Trial by Jury. This 
judgment was pronounced by Mr. Justice Story. From the 
interesting biography of this great jurist, recently published by 
his son, we derive the distinct statement that the necessity of 
Trial by Jury was not before the Court; so that, in the esti- 
mation of the judge himself, it was still an open question. 
Here are the words : 

" One prevailing opinion, wliich has created great prejudice against this 
judgment, is, that it denies the right of a person claimed as a fugitive from 
service or labor to a trial by jury. This mistake arises from supposing the 
case to involve the general question as to the constitutionality of the Act of 
17'j3. But in fact no such question was in the case ; and the argument that 
the Act of 1793 was unconstitutional, because it did not provide for a trial by 
jury accordmg to the requisitions of the sixth article in the amendments to the 
Constitution, having been suggested to my father on his return from Washing- 
ton, he replied that this question was not argued by counsel nor considered by 
the Court, and that he should still consider it an open one." 

But whatever may be the influence of this judgment as a 
rule to the judiciary, it cannot arrest our duty as legislators. 
And here I ado})t with entire assent the language of Pri'sident 
Jackson, in his memorable Veto, in 1832, of the Bank of the 
United States. To his course was opposed the authority of 
the Supreme Court, and this is his reply : 

" If the opinion of the Supreme Court covers the whole ground of this Act, 
it ought not to control the coordinate authorities of tiiis Government. The 
Congress, the Executive, and the Court, must each for itself be guided by its 
own opinion of the Constitution. Each public officer, who takes an oath to 
support the Constitution, swears that he will support it as he understands it, and 
not as it is understood Inj others. It is as much the duty of the House of Rep- 
resentatives, of the Senate, and of the President, to decide upon the constitu- 
tionality of any bill or resolution, which may be presented to them for passage 



44 

or approval, as it is of the Supreme Judges when it may be brought before 
them for jiidici;!! decision. The authority of the Supreme Court must not, 
therefore, be permitted to control the Congress or the Executive, when acting 
in their legislative capacities, but to have only such influence as the force of 
their reasoning may deserve." 

With these authoritative words of Andrew Jackson I dis- 
miss this topic. The early legislation of Congress, and the 
decisions of the Supreme Court cannot stand in our way. I 
advance to the argument. 

(1.) iVb?/;, Jirst, of the power of Cong-rets over this subject. 

The Constitution contains powers granted to Congress, 
compacts between the States, and prohibitions addressed to 
the Nation and to the States. A compact or prohibition may 
be accompanied by a power ; but not necessarily, for it is es- 
sentially distinct in its nature. And here the single question 
arises, Whether the Constitution, by grant, general or special, 
confers upon Congress any power to legislate on the subject 
of fugitives from labor. 

The whole legislative power of Congress is derived from 
two sources ; first, from the general grant of power, attached to 
the long catalogue of powers, " to make all laws which shall 
be necessary and proper for the carrying into execution the 
foregoing powers and all other powers vested by this Consti- 
tution in the Government of the United States, or in any 
department or officer thereof;" and secondly, from special 
grants in other parts of the Constitution. As the provision in 
question does not appear in the catalogue of powers, and does 
not j>«rport to vest any power in the Government of the 
United States, or in any department or officer thereof, no 
power to legislate on this subject can be derived from the 
general grant. Nor can any such power be derived from any 
special grant in any other part of the Constitution; for none 
such exists. The conclusion must be, that no power is dele- 
gated to Congress over the surrender of fugitives from labor. 

In all contemporary discussions and comments, the Consti- 
tution was constantly justified and recommended, on the 
groniul that the powers not given to the Government were 
withheld froin it. If under its original provisions any doubt 



45 

could have existed on this head, it was removed, so far as 
language could remove it, by the Tenth Amendment, which, 
as wc have already ?een, ex])ressly declares, that " The powers 
not delegated to the United States by the Constitution, nor 
prohibited by it to the States, are reserved to the States re- 
spectively or to the people." Here on the simple text of the 
Constitution I might leave this question. But its importance 
justifies a more extended examination in a two-fold light ; 
first, in the history of the Convention, revealing the unmis- 
takeable intention of its members ; and secondly, in the true 
principles of our Political System, by which the powers of the 
Nation and of the States are respectively guarded. 

Look first at the history of the Convention. The articles 
of the old Confederation, adopted by the Continental Congress, 
loth of November, 1777, though containing no reference to 
fugitives from labor, had provisions substantially like those in 
our present Constitution, touching the privileges of citizens in 
the several States, the surrender of fugitives from justice, and 
the credit due to the public records of States. But, since the 
.Confederation had no powers not " expressly delegated," and 
as no power was delegated to legislate on these matters, they 
were nothing more than articles of treaty or compact. After- 
wards, at the National Convention, these three provisions 
found a place in the first reported draft of a Constitution, and 
they were arranged in the very order which they occupied in 
the Articles of Confederation. The clause relating- to public 
records stood last. Mark this fact. 

When this clause, being in form merely a compact, came up 
for consideration in the Convention, various efforts were made 
to graft upon it a povjer. This was on the very day of the 
adoption of the clause relating to fugitives from labor. Charles 
Pinckney moved to commit it with a proposition for a poiver 
to establish uniform laws on the subject of bankruptcy and 
foreign bills of exchange. Mr. Madison was in favor of a. power 
for the execution of judgments in other States. Gouverneur 
Morris on the same day moved to commit a further proposi- 
tion for a power "to determine the proof and effect of such 
acts, records, and proceedings." Amidst all these eflbrts to 



46 



associate a power with this compact, it is clear that nobody 
supposed that any such already existed. This narrative places 
the views of the Convention beyond question. 

The compact regarding public records, together with these 
various propositions, was referred to a committee, on which 
were Mr. Randolph and Mr. Wilson, with John Rutledge, of 
South Carolina, as chairman. After several days, they reported 
the compact, with a power in Congress to prescribe by general 
laws the manner in which such records shall be proved. A 
discussion ensued, in which Mr. Randolph complained that 
the " definition of the powers of the Government was so loose 
as to give it opportunities of usurping all the State powers. 
He IV as for not going; further than the report, which enables the 
Legislature to provide for the effect of judgments.''^ The clause 
of compact with the power attached was then adopted, and is 
now a part of the Constitution. In presence of this solicitude 
for the preservation of "State powers," even while considering 
a proposition for an express power, and also of the distinct 
statement of Mr. Randolph, that he "was not for going further 
than the report," it is evident that the idea could not then 
have occurred, that a power was coupled with the naked 
clause of compact on fugitives from labor. 

At a later day, the various clauses and articles severally 
adopted from time to time in Convention, were referred to a 
committee of revision and arrangement, that they might be 
reduced to form as a connected whole. Here another change 
was made. The clause relating to public records, with the 
power attached, was taken from its original place at the 
bottom of the clauses of compact, and promoted to stand first 
in the article, as a distinct section, whih^ the other clauses of 
compact concerning citizens, fugitives from justice, and fugi- 
tives from labor, each and all without any power attached, by 
a natural association compose but a single section, thus : 

"ARTICLE IV. 
" Section 1. Full faith and credit shall be given in each State to the public 
acts, records and judicial procccdinjjs of every other State. And the Omgress 
may btj gintrnl laws pnscrihe the innnnrr in which such acts, records, and pro- 
ceedings shall be proved, and Ihc efftci thereof. 



47 

" Section 2. The citizens of each State shall be entitled to all privileges 
and immunities of citizens in the several States. 

" A person charged in any State with tieason, felony, or other crime, who 
shall flee from justice, and be found in another State, shall, on demand of the 
Executive authority of the State from which he fled, be delivered up, to be 
removed to the State having jurisdiction of the crime. 

" No person held to service or labor in one State, under the laws thereof, 
escaping into another, shall, in consequence of any law or regulation therein, 
be discharged from such service or labor, but shall be delivered up on claim of 
the party to whom such service or labor may be due. 

Section 3. New States may be admitted by the Congress into this Union ; 
but no new State shall be formed or erected within the jurisdiction of any other 
State, nor any State be formed by the junction of two or more States, or parts 
of States, without the consent of the Legislatures of the States concerned, as 
well as of the Congress. 

" The Congress shall have power to dispose of and make all needful rules 
and regulations respecting the territory or other property belonging to the United 
States ; and nothing in this Constitution shall be so construed as to prejudice 
any claims of the United States, or of any particular State. 

" Section 4. The Umted Sta/cs shall guarantee to every State in this Union 
a republican form of Government, and shall protect each of them against inva- 
sion, and on application of the Legislature, or of the Executive, (when the 
Legislature cannot be convened,) against domestic violence." 

Here is the whole article. It will be observed that the third 
section immediately following the triad section of compacts, 
contains two specific powers, one with regard to new States, 
and the other with regard to the Public Treasury. These are 
naturally grouped together, while the fourth section of this 
same article, which is distinct in its character, is placed by 
itself. In the absence of all specific information, reason alone 
can determine why this arrangement was made. But the 
conchision is obvious, that, in the view of the Committee and 
of the Convention, each of these sections differs from the 
others. The first contains a compact with a grant of power. 
The second contains provisions, all of which are simple con- 
pacts, and two of which were confessedly simple compacts in 
the old Articles of Confederation, from which, unchanged in 
letter or spirit, they were borrowed. The third is a two-fold 
grant of power to Congress, without any compact. The 
fourth is neither power nor compact merely, nor both united, 
but a solemn injunction upon the National Government to 
perform an important duty. 



48 

The framers of the Constitution were wise and careful men, 
who had a reason for what they did, and who understood the 
language which they employed. They did not, after discus- 
sion, incorporate into their work any superfluous provision ; 
nor did they without design adopt the peculiar arrangement 
in which it appears. In adding to the record compact the 
express grant of power, they testified not only their desire for 
such power in Congress ; but their conviction, that, without 
an express grant, it would not exist. But if an express grant 
was necessary in this case, it was equally necessary in all the 
other cases. Expressum facit cessare taciturn. Esj)ecially, in 
view of its odious character, was it necessary in the case of 
fugitives from labor. In abstaining from any such grant, and 
then, in grouping the bare compact with other similar com- 
pacts, separate from every grant of power, they have most 
significantly testified their purpose. They not only decline 
all addition of any such power to the compact, but, to render 
misapprehension impossible, to make assurance doubly sure, 
to exclude any contrary conclusion, they punctiliously arrange 
the clauses, on the principle of noscitur a sociis, so as to dis- 
tinguish all the grants of power, but especially to make the 
new grant of power, in the case of public records, stand forth 
in the front by itself, severed from the mere naked compacts 
with which it was originally associated. 

Thus the records of the Convention show that the founders 
understood the necessity of poirers in certain cases, and, on 
consideration, most jealously granted them. A closing ex- 
ample will strengthen the argument. Congress is expressly 
empowered " to esfdblish on uniform rule of Naturalization, 
and uniform hues on the subject of Bankruptcies, throuiihout 
the United Stalest Without this provision these two sul:)jects 
would have been within the control of the States, the Nation 
having no power to establish an uniform rule thereupon. Now, 
instead of the existing compact on fugitives from labor, it 
would have been easy, had any such desire prevailed, to add 
this case to the clause on Naturalization and Bankruptcies, 
and to empower Congress to establisu an uniform rule for 

THE surrender OF FUGITIVES FROM LAHOR THROUGHOUT THE 



49 

United States. Then, of course, whenever Congress under- 
took to exercise the power, all State control of the subject 
would have been superseded. The National Government 
would have been constituted, like Nimrod, the mighty Hunter, 
with power to gather the huntsmen, to halloo the pack, and to 
direct the chase of men, ranging at will, without regard to 
boundaries or jurisdictions, throughout all the States. But no 
person in the Convention, not one of the reckless partisans of 
slavery, was so audacious as to make this proposition. Had 
it been distinctly made, it would have been distinctly denied. 
The fact that the provision on this subject was adopted 
unanimously, while showing the little importance attached to 
it in the shape it finally assumed., testifies also that it could not 
have been regarded as a source of National poiver over Slavery. 
It will be remembered, that, among the members of the 
Convention, were Gouverneur Morris, who had said, that he 
" never \\o\x\d concur in upholding domestic slavery ; " Elbridge 
Gerry, who thought " we ought to be careful not to give any 
sanction to it; " Roger Sherman, who was opposed to any clause 
" acknowledging men to be property ;" and Mr. Madison, who 
*' thought it WRONG to admit in the Constitution the idea that 
there could be property in man." In the face of these un- 
equivocal statements, it is absurd to suppose that they con- 
sented vnanimoiisly to any provision by which the National 
Government, the work of their hands, dedicated to Freedom, 
could be made the most offensive instrument of Slavery. 

Thus much for the evidence from the history of the Conven- 
tion. But the true principles of our Political System -aw m 
harmony with this conclusion of history ; and here let me say 
a word of State Rights. 

It was the purpose of our fathers to create a National 
Government, and to endow it with adequate powers. They 
had known the perils of imbecility, discord, and confusion, 
during the uncertain days of the Confederation, and desired a 
Government which should be a true bond of Union and an 
efficient organ of the national interests at home and abroad. 
But while fashioning this agency, they fully recognised the 
Governments of the States. To the nation were delegated 



60 

high powers, essential to the national interests, but specific in 
character and limited in number. To the States and to the 
people were reserved the powers, general in character and 
unlimited in number, not delegated to the Nation or prohibited 
to the States. 

The integrity of our Political System depends upon harmony 
in the operations of the Nation and of the States. While the 
Nation withiii its wide orbit is supreme, the States move with 
equal supremacy in their own. But from the necessity of the 
case, the supremacy of each in its proper place excludes the 
other. The Nation cannot exercise rights reserved to the 
States ; nor can the States interfere with the powers of the 
Nation. Any such action on either side is a usurpation. 
These principles were distinctly declared by Mr. Jefferson, in 
1798, in words often adopted since ; and which must find 
acceptance from all parties : 

" That the several States composing- the United States of America are not 
united upon the principle of unlimited submission to the General Government ; 
but that by compact, under the style and title of the Constitution of the United 
Slates and of the amendments thereto, they constituted a General Government 
for special purposes, delegated to that Government certain definite poicers, reserv- 
ing each State to itself, the residuary mass of right to their own self-government, 
and that wheresoever the General Government assumes undelegated powers, its 
acts arc unauthorized, void, and of no force. ''^ 

But I have already amply shown to-day that Slavery is in 
no respect national — that it is not within the sphere of national 
activity — that it has no "positive " support in the Constitution, 
and that any interpretation thereof consistent with this principle 
would be abhorrent to the sentiments of its founders. Slavery 
is a local institution, peculiar to the States and under the 
guardianship of State Rights. It is impossible, without vio- 
lence, at once to the spirit and to the letter of the Constitution, 
to attribute to Congress any power to legislate, either for its 
abolition in the States or its support anywhere. Non-inter- 
vention is the rule ])rescribed to the Nation. Regarding the 
question only in its more general aspects, and putting aside, 
for the moment, the perfect evidence from the records of the 
Convention, it is palpable that there is no national fountain 
out of which the existing Slave Act can be derived. 



51 

But this Act is not only an unwarrantable assumption of 
power by the Nation ; it is also an infraction of rights reserved 
to the States. Everywhere within their borders the States are 
the peculiar guardians oi personal liberty. By Jury and Habeas 
Corpus to save the citizen harmless against all assault is among 
their duties and rights. To his State the citi/en when oppressed 
may appeal, nor should he find that appeal denied. But this 
Act despoils him of his rights, and despoils his State of all 
power to protect him. It subjects him to the wretched chances 
of false oaths, forged papers, and facile commissioners, and 
takes from him every safeguard. Now, if the slaveholder has 
a right to be secure at home in the enjoyment of Slavery, so 
also has the freeman of the North — and every person there is 
presumed to be a freeman — an equal right to be secure at home 
in the enjoyment of Freedom. The same principle of State 
Rights by which Slavery is protected in the Slave States 
throws an impenetrable shield over Freedom in the Free 
States. And here, let me say, is the only security for Slavery 
in the Slave States as for Freedom in the Free States. In 
the present fatal overthrow of State Rights you teach a lesson 
which may return to plague the teacher. Compelling the 
National Government to stretch its Briarean arms into the 
Free States, for the sake of Slavery, you show openly how it 
may stretch these same hundred giant arms into the Slave 
States for the sake of Freedom. This lesson was not taught 
by our fathers. 

And here I end this branch of the question. The true prin- 
ciples of our Political System, the history of the National 
Convention, the natural interpretation of the Convention, all 
teach that this Act is a usurpation by Congress of powers that 
do not belong to it, and an infraction of rights secured to the 
States. It is a sword, whose handle is at the National Capi- 
tal, and whose point is everywhere in the States. A weapon 
so terrible to Personal Liberty the Nation has no power to 
grasp. 

(2.) And noiv of the denial of Trial by Jury. Admitting, for 
the moment, that Congress is intrusted with power over this 



62 

subject, which truth disowns, still the Act is again radically 
unconstitutional from its denial of Trial by Jury in a question 
of Personal Liberty and a suit at common law. Since on the 
one side there is a claim of property, and on the other of lib- 
erty, both property and liberty are involved in the issue. To 
this claim on either side is attached Trial by Jury. 

To me, sir, regarding this matter in the light of the common 
law and in the blaze of free institutions, it has always seemed 
impossible to arrive at any other conclusion. If the language 
of the Constitution were open to doubt, which it is not, still 
all the presumptions of law, all the leanings for Freedom, all 
the suggestions of justice, plead angel-tongued for this right. 
Nobody doubts that Congress, if it legislates on this matter, 
may allow a Trial by Jury. But if it may, so overwhelming is 
the claim of justice, it must. Beyond this, however, the ques- 
tion is determined by the precise letter of the Constitution. 

Several expressions in the provision for the surrender of 
fugitives from labor, show the essential character of the pro- 
ceedings. In the first place, the person must be, not merely 
charged, as in the case of fugitives from justice, but actually 
held to labor in the State from which he escaped. In the 
second place, he must be " delivered up on claim of the party 
to whom such labor is due. " These two facts, that he was 
held to labor, and that his labor was due to his claimant, are 
directly placed in issue, and must be proved. Two necessary 
incidents of the delivery may also be observed. First, it must 
be made in the State where the fugitive is found ; and, sec- 
ondly, it restores to the claimant his complete control over the 
person of the fugitive. From these circumstances it is evident 
that the proceedings cannot be regarded, in any just sense, as 
preliminary, or ancillary to some future formal trial, but as 
complete in themselves, final and conclusive. 

And these proceedings determine on the one side the ques- 
tion of property, and on the other the sacred question of 
Personal Liberty in its most transcendent form ; not merely 
Liberty for a day or a year, but for life, and the Liberty of 
generations that shall come after, so long as Slavery endures. 
To these questions, the Constitution, by two specific pro vis- 



53 

ions, attaches the Trial by Jury. One of these is the familiar 
clause, already adduced : " No person shall be deprived of life, 
liberty^ or property, without due process of law ;^^ that is, with- 
out due proceedin£^s at law, with Trial by Jury. Not stojiping 
to dwell on this, I press at once to the other provision, which 
is still more express : " In suits at common law, where the 
value in controversy shall exceed twenty dollars, the right of 
Trial by Jury shall be preserved. " This clause, which was not 
in the original Constitution, was suggested by the very spirit 
of Freedom. At the close of the National Convention, El- 
bridge Gerry refused to sign the Constitution, because among 
other things, it established " a tribunal vnthout juries, a Star 
Chamber as to civil cases." Many united in his opposition, 
and on the recommendation of the First Congress this addi- 
tional safeguard was adopted as an amendment. 

Now, regarding the question as one of property, or of Per- 
sonal Liberty, in either alternative the Trial by Jury is secured. 
For this position authority is ample. In the debate on the 
Fugitive Slave Bill of 1817-'18, a Senator from South Caro- 
lina, Mr. Smith, anxious for the asserted right of property, ob- 
jected, on this very floor, to a reference of the question, under 
the writ of Habeas Corpus, to a judge without a jury. S[)eak- 
ing solely for property, these were his words : 

" This would give the Judge the sole power of deciding the right of prop- 
erty the master claims in his slaves, instead of trying that right hy a jury, as 
prescribed by the Constitution. He would be judge of matters of law and mat- 
ters of fact ; clothed with all the powers of a court. Such a principle is un- 
known in your system of jurisprudence. Your Constitution has forbid it. It 
preserves the right of Trial by Jury in all cases where the value in controversy 
exceeds twenty dollars." — (Debates in National Intelligencer, June 15, 1818.) 

But this provision has been repeatedly discussed by the Su- 
preme Court, so that its meaning is not ojxmi to doubt. Three 
conditions are necessary. First, the proc(M>dings must be " a 
suit;" secondly, " at common law;" and thirdhj, "where the 
value in controversy exceeds twenty dollars. " In every such 
case "the right of Trial by Jury shall be preserved." The 
decisions of the Supreme Court expressly touch each of these 
points. 



54 

First. In the case of Cohens v. Virginia^ (6 Wheaton, 407,) 
the Court say : " What is a suit ? We understand it to be the 
prosecution of some claim,, demand, or request. " Of course, 
then, the " claim " for a fugitive must be " a suit. " 

Secondly. In the case of Parsons v. Bedford, (3 Peters, 
456,) while considering this very clause, the Court say : " By 
common laio is meant not merely suits which the common law 
recognised among its old and settled proceedings, but suits in 
which leg-al rights were to be ascertained and determined. In 
a just sense, the Amendment may well be construed to cm- 
brace all suits, which are not of Equity or Admiralty jurisdic- 
tion, whatever may he the peculiar form which they may assume 
to settle legal rights. " Now, since the claim for a fugitive is 
not a suit in Equity or Admiralty, but a suit to settle what are 
called legal rights, it must, of course, be " a suit at common 
law. " 

Thirdly. In the case of Lee v. Lee, (8 Peters, 44,) on a 
question whether "the value in controversy" was " one thou- 
sand dollars and upwards, " it was objected that the appellants, 
who were petitioners for Freedom, were not of the value of 
one thousand dollars. But the Court said : " The matter in 
dispute is the Freedom of the petitioners. This is not suscep- 
tible of pecuniary valuation. No doubt is entertained of the 
jurisdiction of the Court." Of course, then, since liberty is 
above price, the claim to any fugitive always and necessarily 
presumes that " the value in controversy exceeds twenty 
dollars." 

By these successive steps, sustained l^y decisions of the 
highest tribunal, it appears, as in a diagi-am, that the right of 
Trial by Jury is secured to the fugitive from labor. 

This conclusion needs no further authority ; but it may 
receive curious illustration from the ancient records of the 
common law, so familiar and dear to the framers of the Con- 
stitution. It is said by Mr. Burke, in his magnificent speech on 
Conciliation with America, that " nearly as many of Black- 
stone's Commentaries were sold in America as in England," 
carrying thither the knowledge of those vital principlrs of 
Freedom, which were the boast of the British Constitution. 



55 

Imbned by these, the earliest Continental Congress, in 1774, 
declared, " That the respective Colonies are entitled to the 
common law of England, and especially to the great and ines- 
timable privilege of being tried by their peers of the vicinage 
according to the course of that law." Thus, amidst the 
troubles which heralded the Revolution, the common law was 
claimed by our fathers as a birthright. 

Now although the common law may not be approached as 
a source of jurisdiction under the National Constitution — and 
on this point I do not dwell — it is clear that it may be em- 
}iloycd to determine the meaning of technical terms in the Con- 
stitution borrowed from this law. This, indeed, is expressly 
sanctioned by Mr. Madison, in his celebrated report of 1799, 
while restraining the extent to which the common law may be 
employed. Thus by this law we learn the nature of Trial by 
Jury, which, though secured, is not described by the Constitu- 
tion ; also of Bills of Attainder, the Writ of Habeas Corpus, 
and Impeachment, all technical terms of the Constitution bor- 
rowed from the common law. By this law, and its associate 
Chancery, we learn what are cases in laio and equity to which 
the judicial power of the United States is extended. These 
instances I adduce merely by way of example. Of course also 
in the same way we learn what in reality are suits at common 
law. 

Now, on ])rinciple and authority, a claim for the delivery of 
a fugitive slave is a suit at common law, and is embraced natu- 
rally and necessarily in this class of judicial proceedings. 
This proposition can be j^laced beyond question. And here, 
especially, let me ask the attention of all learned in the law. 
On this point, as on every other in this argument, I challenge 
inquiry and answer. 

History painfully records, that during the early days of the 
common law, and down even to a late period, a system of 
slavery existed in England, known under the name of vilhiin- 
age. The slave was generally called a villain, though, in the 
original Latin forms of judicial proceedings, nativus, implying 
slavery by birth. The incidents of this condition havt> been 
minutely described, and also the mutual remedies of master 



56 

and slave, all of which were regulated by the common law. 
Slaves sometimes then, as now, escaped from their masters. 
The claim for them after such escape was prosecuted by a 
" suit at common law," to which, as to every suit at common 
law, the Trial by Jury was necessarily attached. Blackstone, 
in his Commentaries, (Vol. II, p. 93,) in words which must 
have been known to all the lawyers of the Convention, said of 
villains : " They could not leave their lord without his permis- 
sion, but if they ran away, or were purloined from him, might 
be CLAIMED and recovered by action, like beasts or other cattle." 
This very word " action " of itself implies " a suit at common 
law," with Trial by Jury. 

From other sources we learn precisely what the action was. 
That great expounder of the ancient law, Mr. Hargrave, says, 
" The Year Books and Books of Entries are full of the forms 
used in pleading a title to villains." Though no longer of 
practical value in England, they remain as monuments of juris- 
prudence, and as mementoes of a barbarous institution. He 
thus describes the remedy of the master at common law : 

" The lord's remedy for a fugitive villain was, either by seizure or by 
suing out a writ of Natiro Hahendo, or Neifty, as it is sometimes called. If 
the lord seized, the villain's most effectual mode of recovering liberty was by 
the writ of Homine Ecple giando , which had great advantage over the writ of 
Habeas Corpus. In the Habeas Corpus the return cannot be contested by 
pleading against the truth of it, and consequently on a Habeas Corpus the ques- 
tion of libertTj cannot go to a jury for trial. But in the Homine Rfplegiando it 
was otherwise. The plaintiff, on the defendant's pleading villainage, had the 
same opportunity of contesting it, as when impleaded by the lord in a Nativo 
Hahendo. If the lord sued out a Nativo Hahendo, and the villainage was de- 
nied, in which casfe the sheriff could not seize the villain, the lord was then to 
enter his plaint in the county court, and as the sheriff was not allowed to try the 
question of villainage in his court, the lord could not have any benefit from the 
writ, without removing the cause by tlic writ oi Pone into the King's Bench or 
Common Pleas." — (20 Howell's State Trials, .38 note.) 

The authority of Mr. Hargrave is suflicient. But I desire 
to place this matter beyond all cavil. From the Digest of 
Lord Chief Baron Comyns, which, at the adoption of the 
Constitution, was one of the classics of our jurisprudence, I 
derive another description of the remedy of the master : 



57 

" If the lurd claims an inheritance in liis villain, who Jlics from his lord 
against his icUh and lives in a place out of the manor, to which he is regard- 
ant, the lord shall have a Native Hahcndo. And upon such writ, directed to 
the sheriff, he may seize him who does not deny himself to be a villain. But if 
the defendant say that he is a Free Man, the sheriff cannot seize him, but the 
lord must remove the writ by Pone before the Justices in Eire, or in C. J3., 
ivhere he must count upon it.'" — (Comyns' Digest — Villainage, C. 1.) 

An early writer of peculiar authority, Fitzherbert, in his 
Natura Brevium, on the writs of the common law, thus de- 
scribes these proceedings : 

" The writ de Nalivo Habendo lieth for the lord who claimeth inheritance in 
any villain, when his villain is run from him, and is remaining within any place 
out of the manor unto which he is regardant, or when he departeth from his 
lord against the lord's will ; and the writ shall be directed to the sheriff. And 
the sheriff may seize the villain, and deliver him unto his lord, if the villain 
confess unto the sheriff that he is his villain ; but if the villain say to the sheriff 
that he is frank, then it seemeth that the sheriff ought not to seize him ; as 
it is in a replevin, if the defendant claim property, the sheriff cannot replevy 
the cattle, but the party ought to sue a writ de Proprietate Probanda; and so 
if the villain say that he is a free man, &c., then the sheriff ought not to seize 
him, but then the lord ought to sue a Pone to remove the plea before the justices 
of the Common Pleas, or before the justices in eyre. But if the villain 
purchase a writ de Libertate Probanda before the lord hath sued the Pone to 
remove the plea before the justices, then that writ of Libertate Probanda is a 
Supersedeas unto the lord, that he proceed not upon the writ Nativo Habendo till 
the eyre of the justices, and that the lord ought not to seize the villain in the 
mean time." — (Vol. I, p. 76.) 

These authorities arc not merely applicable to the general 
question of freedom; but they distinctly contemi)late the 
case of fugitive slaves, and the " suits at common law " for 
their rendition. Blackstone speaks of villains who "ran 
away ; " Hargrave of " fugitive villains ; " Comyns of a villain 
"who flies from his lord against his will ;" and Fitzherbert of 
the proceedings of the lord " when his villain is run from him." 
The forms, writs, counts, pleadings, and judgments, in these 
suits, are all preserved among the precedents of the common 
law. The writs are known as original writs which the party 
on either side, at the proper stage, could sue out of right with- 
out showing cause. The writ of Libertate Probanda for a 
fugitive slave was in this form : 



" Libertate Probanda. 
" The king to the sheriff, &c. A. and B. her sister, have showed unto us, 
that whereas they are free women, and ready to prove their liberty, F. claiming 
them to be his niefs unjustly, vexes them ; and therefore we command you, that 
if the aforesaid A. and B. shall make you secure touching the proving of their 
liberty, then put that plea before our justices at the first assizes, when they 
shall come into those parts, because proof of this kind belongeth not to you to 
take ; and in the mean time cause the said A. and B. to have peace thereupon, 
and tell the aforesaid F. that he may be there, if he will, to prosecute his plea 
thereof against the aforesaid A. and B. And have there this writ. Witness, 
&.c."—{Fitzherberty Vol. I, p. 77.) 

By these various proceedings, all ending in Trial by Jury, 
Personal Liberty was guarded, even in the early, unrefined, 
and barbarous days of the common law. Any person claimed 
as a fugitive slave might invoke this Trial as a sacred right. 
Whether the master proceeded by seizure, as he might, or by 
legal process, the Trial by Jury is a suit at common law, before 
one of the high courts of the realm, was equally secured. In 
the case of seizure, the fugitive, reserving the proceedings, 
might institute process against his master and appeal to a 
court and jury. In the case of process by the master, the 
watchful law secured to the fugitive the same protection. By 
no urgency of force, by no device of process, could any person 
claimed as a slave be defrauded of this Trial. Such was the 
common law. If its early boast, that there could be no slaves 
in England, fails to be true, this at least may be its pride, 
that, according to its indisputable principles, the Liberty of 
every man was placed under the guard of Trial by Jury. 

These things may seem new to us ; but they must have 
been known to the members of the Convention, particularly 
to those from South Carolina, through whose influence the 
provision on this subject was adopted. Charles Cotesworth 
Pinckncy and Mr. Rutledge had studied law at the Temple, 
one of the English Inns of Court. It would be a discredit to 
them, and also to other learned lawyers, members of the Con- 
vention, to suppose that tliey were not conversant with the 
principles and precedents directly applicable to this subject, all 
of which are set down in works of acknowledged weight, and 
at that time of constant professional study. Only a short time 



59 

before, in the case of Somerseit, they had been most elaborately 
examined in Westminster Hall. In a forensic effort of unsur- 
passed learning and elevation, which of itself vindicates for 
its author his great juridical name, INIi-. Hargrave had fully 
made them known to such as were little acquainted with the 
more ancient sources. But even if we could suppose them 
unknown to the lawyers of the Convention, they are none the 
less applicable in determining the true meaning of the Con- 
stitution. 

The conclusion from this examination is explicit. Clearly 
and indisputably, in England, the country of the common law, 
a claim for a fugitive slave was '• a suit at common law," 
recognised " among its old and settled proceedings." To 
question this, in the face of authentic principles and precedents, 
would be preposterous. As well might it be questioned, that 
a writ of replevin for a horse, or a writ of right for land, was 
" a suit at common law." It follows, then, that this technical 
term of the Constitution, read in the illumination of the 
common law, naturally and necessarily embraces proceedings 
for the recovery of fugitive slaves, if any such be instituted or 
allou-ed under the Constitution. And thus, by the letter of the 
Constitution, in harmony with the requirements of the common 
law, all such persons, when claimed by their masters, are 
entitled to a Trial by Jury. 

Such, sir, is the argument, briefly uttered, against the con- 
stitutionality of the Slave Act. Much more I might say on 
this matter; much more on the two chief grounds of objection 
which I have occupied. But I am admonished to hasten on. 

Opposing this Act as doubly unconstitutional from a want 
of power in Congress and from a denial of Trial by Jury, I 
find myself again encouraged by the example of our Revolu- 
tionary Fathers, in a case which is one of the landmarks of 
history. The parallel is imi)ortant and complete. In 1765, 
the British Parliament, by a notorious statute, attempted to 
draw money from the colonies through a stamp tax, while the 
determination of certain questions of forfeiture under the statute 
was delegated — not to the courts of common law — but to 



60 

Courts of Admiralty without a jury. The Stamp Act, now 
execrated by all lovers of liberty, had this extent and no more. 
Its passage was the signal for a general flame of opposition 
and indignation throughout the Colonics. It was denounced 
as contrary to the British Constitution on two principal 
grounds ; first, as a usurpation by Parliament of powers not 
belonging to it, and an infraction of rights secured to the 
Colonics ; and secondly, as a denial of Trial by Jury in certain 
cases of property. 

The public feeling was variously expressed. At Boston, 
on the arrival of the stamps, the shops were closed, the bells of 
the churches tolled, and the flags of the ships hung at half-mast. 
At Portsmouth, in New Hampshire, the bells were tolled, and 
notice given to the friends of Liberty to hold themselves in 
readiness to attend her funeral. At New York a letter was 
received from Franklin, then in London, written on the day 
after the passage of the Act, in which he said : " The sun of 
liberty is set." The obnoxious Act, headed " Folly of Eng- 
land and Ruin of America," was contemptuously hawked 
through the streets. The merchants of New York, inspired 
then by Liberty, resolved to import no more goods from 
England until the repeal of the Act ; and their example was 
followed shortly afterwards by the merchants of Philadelphia 
and Boston. Bodies of patriots were organized everywhere 
under the name of " Sons of Liberty." The orators also 
spoke. James Otis with fiery tongue appealed to Magna 
Charta. 

Of all the States, Virginia — whose shield bears the image 
of Liberty trampling upon chains — first declared herself by 
solemn resolutions, which the timid thought "treasonable;" 
but which soon found a response. New York followed. 
Massachusetts came next, speaking by the pen of the inflex- 
ible Samuel Adams. In an Address from the Legislature to 
the Governor, the true grounds of opposition to the Stamp 
Act, coincident with the two radical objections to the Slave 
Act, are clearly set forth : 

" You are pleased to say that the Stamp Act is an act of Parliament, and as 
such ought to be observed. This House, sir, has too great reverence for the 



61 

Supreme Legislature of the nation to qufstion its just authority. It by no 
means appertains to us to presume to adjust the boundaries of the poiver of 
Parliament ; hut boundaries there undoubtedly are. We hope we may, -without 
offence, put your Excellency in mind of that most grievous sentence of excom- 
munication solemnly denounced by the Church in the name of the sacred 
Trinity, in the presence of King Henry the Third and ihe estates of the realm, 
against all those who should 7nal;e statutrs or observe them, being made, 
contrary to the liberties of Magna Charta. The Charter of this province 
invests the General Assembly with the power of making laws for its internal 
government and taxation ; and this Charter has never been forfeited. The 
Parliament has a right to make all laws within the limits of their own constitu- 
tion." * * * " The people complain that the Act vests a single judge of 
Admiralty with the power to try and determine their property in controversies 
arising from internal concerns, without a jury, contrary to the very expression 
of Magna Charta, that no freeman shall be amerced, but by the oath of good 
and lawful men of the vicinage." * * * " We deeply regret that the 
Parliament has seen fit to pass such an act as the Stamp Act ; we flatter our- 
selves that the hardships of it will shoitly appear to them in such a light, as 
shall induce them in their wisdom to repeal it ; in the mean time, we must beg 
your Excellency will excuse us from doing anything to assist in ihe execution 
of it.'' 

Thus in those days spoke Massachusetts! The parallel 
still proceeds. The unconstitutional Stamp Act was wel- 
comed in the Colonies by the Tories of that day precisely as 
the unconstitutional Slave Act has been welcomed by large 
and imperious numbers among us. Hutchinson, at that time 
Lieutenant Governor and Judge in Massachusetts, wrote to 
Ministers in England : " The Stamp Act is received with as 
much decency as could be expected. It leaves no room for 
evasion, and will execute itself." Like the judges of our day, 
in charges to grand juries, he resolutely vindicated the Act, 
and admonished " the jurors and the people " to obey. Like 
Governors of our day, Bernard, in his speech to the Legisla- 
ture of Massachusetts, demanded unreasoning submission. 
« I shall not," says this British Governor, " enter into any dis- 
quisition of the policy of this Act. I have only to say it is an 
Act of the Parliament of Great Britain ; and I trust that the 
supremacy of that Parliament over all the members of their 
wide and difiused empire never was and never will be denied 
within these walls." Like marshals of our day, the ofhcers of 
the Customs made " application for a military force to assist 
6 



62 

them in the execution of their duty." The military were 
against the people. A British major of artillery at New York 
exclaimed, in tones not unlike those now sometimes heard : 
" I will cram the stamps down their throats with the end of 
my sword." The elaborate answer of Massachusetts — a pa- 
per bf historic grandeur — drawn by Samuel Adams, was 
pronounced " the ravings of a parcel of wild enthusiasts." 

Thus in those days spoke the partisans of the Stamp Act. 
But their weakness soon became manifest. In the face of an 
awakened community, where discussion has free scope, no 
men, though surrounded by office and wealth, can long sustain 
injustice. Earth, water, nature, they may subdue ; but Truth 
they cannot subdue. Subtle and mighty, against all efforts 
and devices, it fills every region of light with its majestic 
presence. The Stamp Act was discussed and understood. Its 
violation of constitutional rights was exposed. By resolutions 
of Legislatures and of town meetings, by speeches and writ- 
ino-s, by public assemblies and processions, the country was 
rallied in peaceful phalanx ogainst the execution of the Act. 
To this great object, within the bounds of law and the consti- 
tution, were bent all the patriot energies of the land. 

And here Boston took the lead. Her records at this time 
are full of proud memorials. In formal instructions to her rep- 
resentatives, adopted unanimously, " having been read seve- 
ral times," in Town Meeting at Faneuil Hall, the following 
rule of conduct was prescribed : 

" We, therefore, think it our indispensable duty, in Justice to ourselves and 
Posterity, as it is our undoubted Privilege, in the most open and unreserved, 
but decent and respectful Terms, to declare our greatest Dissatisfaction with 
this Law. And tue think it incumbent upon you hj no Means to join in any 
public Measures for countenancing and assisting in the execution of the same. 
But to use your besc endeavors in the General Assembly to have the inherent 
inalienable Rights of the People of this Province asserted, and vindicated, and 
left upon the public record, that Posterity may never have reason to charge the 
present Times with the Guilt of tamely giving them away," 

Virginia responded to Boston. Many of her justices of the 
peace surrendered their commissions " rather than aid in the 
enforcement of the law, or be instrumental in the overthrow 
of their country's liberties." 



63 

As the opposition deepened, its natural tendency was to 
outbreak and violence. But this was carefully restrained. 
On one occasion in Boston it showed itself in the lawlessness 
of a mob. But the town, at a public meeting in Faneuil 
Hall, called without delay on the motion of the opponents of 
the Stamp Act, with James Otis as chairman, condemned the 
outrage. Eager in hostility to the execution of the Act, Bos- 
ton cherished municipal order, and constantly discountenanced 
all tumult, violence, and illegal proceedings. Her equal devo- 
tion to these two objects drew the praises and congratulations 
of other towns. In reply, March 27th, 1766, to an Address 
from the inhabitants of Plymouth, her own consciousness of 
duty done is thus expressed : 

" If the inhabitants of Boston have taken the legal and ivarrantahle measures 
to prevent that misfortune of all others the most to be dreaded, the execution of the 
Sta>np Act, and as a necessary means of preventing it have made any spirited 
applications for opening the custom-houses and courts of justice ; if at the same 
time they have borne their testimony against outrageous tumults and illegal pro- 
ceedings, and given any example of the Love of Peace and good order, next to 
the consciousness of having done their duty is the satisfaction of meeting with 
the approbation of any of their fellow-countrymen." 

Learn now from the Diary of John Adams the results of 
this system : 

" The year 1765 has been the most remarkable year of my life. That enor- 
mous engifte, fabricated by the British Parliament, for battering down all the 
rights and liberties of America — I mean the Stamp Act — has raised and 
spread through the whole continent a spirit that will bo recorded to our honor 
with all future generations. In e%'ery Colony, from Georgia to New Hamp- 
shire inclusively, the stamp distributors and inspectors have been compelled by 
the unconquerable rage of the people to renounce their offices. Such and so 
universal has been the resentment of the people, that every man who has dared 
to speak in favor of the stamps, or to soften the detestation in which they are 
held, how great soever his abilities and virtues had been esteemed before, or 
whatever his fortune, connections, and influence had been, has been seen to 
sink into universal contempt and ignominy." 

The Stamp Act became a dead letter. At the meeting of 
Parliament numerous petitions were presented, calling for its 
instant repeal. Franklin, at that time in England, while 
giving his famous testimony before the House of Commons, 
was asked whether he thought the people of America would 



64 

ptibmit to this Act if modified. His brief emphatic response 
was : " No, never, unless compelled by force of arms." Chat- 
ham yet weak with disease, but mighty in eloquence, ex- 
claimed in ever-memorable words : " We are told America is 
obstinate — America is almost in open rebellion. Sir, I re- 
joice that America has resisted. Three millions of people so 
dead to all the feelings of liberty, as voluntarily to submit to 
be slaves, would have been fit instruments to make slaves of 
all the rest. The Americans have been wronged; they have 
been driven to madness. I will beg leave to tell the House in 
a few words that is really my opinion. It is that the Stamp 
Act he repealed, absolutely, totally, and immediately. " It was 
repealed. Within less than a year from its original passage, 
denounced and discredited, it was driven from the Statute 
Book. In the charnel-house of history, with the unclean 
things of the Past, it now rots. Thither the Slave Act is 
destined to follow. 

Sir, regarding the Stamp Act candidly and cautiously, free 
from the animosities of the time, it is impossible not to see 
that, though gravely unconstitutional, it was at most an 
infringement of civil liberty only ; not of personal liberty. 
There was an unjust tax of a few pence, with the chances of 
amercements by a single judge without a jury; but, by no 
provision of this Act was the personal liberty of any man 
assailed. Under it no freeman could be seized as a slave. 
Such an Act, though justly obnoxious to every lover of con- 
stitutional Liberty, cannot be viewed with the feelings of 
repugnance, enkindled by a statute, which assails the personal 
liberty of every man, and under which any freeman may be 
seized as a slave. Sir, in placing the Stamp Act by the side 
of the Slave Act, I do injustice to that emanation of British 
tyranny. Both, indeed, infringe important rights ; one of 
property^ the other the vital right of all, which is to other 
rights as the soul to the body — the rig-ht of a man to him- 
self. Both lare condemned ; but their relative condemnation 
must be measured by their relative characters. As Freedom 
is more than property ; as Man is above the dollar that he 
earns ; as Heaven, to which we all aspire, is higher than the 



65 

earth, where every accumulation of wealth must ever remain ; 
so are the rights assailed by an American Congress higher 
than those once assailed by the British Parliament. And just 
in this degree must history condemn the Slave Act more than 
the Stamp Act. 

Sir, I might here stop. It is enough in this place, and on 
this occasion, to show the unconstitutionality of this enact- 
ment. Your duty commences at once. All legislation hostile 
to the fundamental law of the land should be repealed with- 
out delay. But the argument is not yet exhausted. Even if 
this Act could claim any validity or apology under the Consti- 
tution, which it cannot, it lacks that essential support in the 
Public Conscience of the States, inhere it is to be enforced, 
lohich is the life of all law, and without ivhich any laiv must 
become a dead letter. 

The Senator from South Carolina (Mr. Butler) was right, 
when, at the beginning of the session, he pointedly said that a 
law which could be enforced only by the bayonet, was no law. 
Sir, it is idle to suppose that an Act of Congress becomes 
effective, merely by compliance with the forms of legislation. 
Something more is necessary. The Act must be in harmony 
with the prevailing public sentiment of the community upon 
which it bears. Of course, I do not suggest that the cordial 
support of every man or of every small locality is necessary ; 
but I do mean that the public feelings, the public convictions, 
the public conscience, must not be touched, wounded, lace- 
rated, by every endeavor to enforce it. With all these it must 
be so far in harmony, that, like other laws, by which property, 
liberty, and life, are guarded, it maybe administered by the 
ordinary process of courts, without jeoparding the public 
peace or shocking good men. If this be true as a general 
rule — if the public support and sympathy be essential to the 
life of all law, this is especially the case in an enactment 
which concerns the important and sensitive rights of Personal 
Liberty. In conformity with this principle, the Legislature of 
Massachusetts, by formal resolution, in 1850, with singular 
unanimity, declared : 

6» 



66 

" We hold it to be the duty of Congress to pass such laws only in regard 
thereto as will be maintained by the sentiments of the Free States, where such 
laws are to be enforced." 

The duty of consulting these sentinrients was recognised by 
Washington. While President of the United States, at the 
close of his Administration, he sought to recover a slave who 
had fled to New Hampshire. His autograph letter to Mr. 
Whipple, the Collector of Portsmouth, dated at Philadelphia, 
28th November, 1796, which I now hold in my hand, and 
which has never before seen the light, after describing the 
fugitive, and particularly expressing the desire of " her mis- 
tress," Mrs. Washington, for her return, employs the following 
decisive language : 

" T do not mean, however, by this request, that such violent measures should 
be used as would excite a mob or riot, which might be the case if she 

HAS ADHERENTS, OR EVEN UNEASY SENSATIONS IN THE MINDS OF WELL-DISPOSED 

CITIZENS. Rather than either of these should happen, I would forego her ser- 
-vices altogether ; and the example, also, which is of infinite more importance. 

" GEORGE WASHINGTON." 

Mr. Whipple, in his reply, dated at Portsmouth, December 22, 
1796, an autograph copy of which I have, recognises the rule 
■of Washington : 

" I will now, sir, agreeably to your desire, send her to Alexandria, if it be 
praclirable without the consequences which ijou except — that of exciting a riot or 
a mob, or creating uneasy sensations in the minds of ivell-disposed persons. The 
first cannot be calculated beforehand ; it will be governed by the popblar opin- 
ion of the moment, or the circumstances that may arise in the transaction. 
The latter may be sought into and judged of by conversing with such persons 
without discovering the occasion. So far as I have had opportunity, I perceive 
that different sentiments are entertained on this subject." 

The fugitive never was returned ; but lived in freedom to a 
good old age, down to a very recent period, a monument of the 
just forbearance of him whom we aptly call the Father of his 
Country. It is true that he sought her return. This we must 
regret, and find its apology. He was at the time a slave- 
holder. Though often with various degrees of force express- 
ing himself against slavery, and promising his suffrage for its 
■abolition, he did not sec this wrong as he saw it at the close 
of life, in the illumination of another sphere. From this act 



67 

of Washington, still swayed by the policy of the world, I ap- 
peal to Washington \\Titing his will. From Washington on 
earth I appeal to Washington in Heaven. Seek not by his 
name to justify any such eflbrt. His death is above his life. 
His last testament cancels his authority as a slaveholder. 
However he may have appeared before man, he came into the 
presence of God only as the liberator of his slaves. Grateful 
for this example, I am grateful also that, while a slaveholder, 
and seeking the return of a fugitive, he has left in permanent 
record a rule of conduct which, if adopted by his country, will 
make Slave-Hunting impossible. The chances of a riot or 
mob, or " even uneasy sensations among well-disposed per- 
sons," are to prevent any such pursuit. 

Sir, the existing Slave Act cannot be enforced without 
violating the precept of Washington. Not merely " uneasy 
sensations of well-disposed persons," but rage, tumult, commo- 
tion, mob, riot, violence, death, gush from its fatal overflowing 
fountains ; 

hoc fonte derivata clades 

In patriain populumque fluxit. 

Not a case occurs without endangering the public peace. 
Workmen are brutally dragged from employments to which 
they are wedded by years of successful labor; husbands are 
ravished from wives, and parents fr§m children. Everywhere 
there is disturbance ; at Detroit, Buffalo, Harrisburg, Syra- 
cuse, Philadelphia, New York, Boston. At Buffalo the fugi- 
tive was cruelly knocked by a log of wood against a red-hot 
stove, and his mock trial commenced while the blood still 
oozed from his wounded head. At Syracuse he was rescued 
by a sudden mob ; so also at Boston. At Harrisburg the 
fugitive was shot; at Christiana the Slave-Hunter was shot. 
At New York unprecedented excitement, always with uncer- 
tain consequences, has attended every case. Again at Boston 
a fugitive, according to the received report, was first basely 
seized under pretext that he was a criminal ; arrested only 
after a deadly struggle ; guarded by officers who acted in 
violation of the laws of the State ; tried in a Court-House 
surrounded by chains contrary to the common law; finally 



surrendered to Slavery by trampling on the criminal process of 
the State, under an escort in violation again of the laws of the 
State, while the pulpits trembled and the Avhole people, not 
merely " uneasy," but swelling with ill-suppressed indigna- 
tion, for the sake of order and tranquillity, without violence 
witnessed the shameful catastrophe. 

With every attempt to administer the Slave Act, it con- 
stantly becomes more revolting, particularly in its influence on 
the agents it enlists. Pitch cannot be touched without defile- 
ment, and all w^ho lend themselves to this work seem at once 
and unconsciously to lose the better part of man. The spirit 
of the law passes into them, as the devils entered the swine. 
Upstart commissioners, the mere mushrooms of courts, vie 
and revie with each other. Now by indecent speed, now by 
harshness of manner, now by a denial of evidence, now by 
crippling the defence, and now by open glaring wrong, they 
make the odious Act yet more odious. Clemency, grace, and 
justice, die in its presence. All this is observed by the world. 
Not a case occurs which does not harrow the souls of good 
men, and bring tears of sympathy to the eyes, also those other 
noble tears which " patriots shed o'er dying laws." 

Sir, I shall speak frankly. If there be an exception to this 
feeling, it will be found chiefly with a peculiar class. It is a 
sorry fact that the " mercantile interest," in its unpardonable 
selfishness, twice in English history, frowned upon the endea- 
vors to suppress the atrocity of Algerine Slavery ; that it 
sought to baffle Wilberforce's great effort for the abolition of 
the African slave trade ; and that, by a sordid compromise, at 
the formation of our Constitution, it exempted the same de- 
tested Heaven-defying traffic from American judgment. And 
now representatives of this " interest," forgetful that commerce 
is the child of Freedom, join in hunting the Slave. But the 
great heart of the people recoils from this enactment. It pal- 
pitates for the fugitive, and rejoices in his escape. Sir, I am 
telling you facts. The literature of the age is all on his side. 
The songs, more potent than laws, are for him. The poets, 
with voices of melody, are for Freedom. Who could sing for 
Slavery ? They who make the permanent opinion of the 



69 

country, who mould our youth, whose words, dropped into the 
soul, are the germs of character, suppUcate for the Slave. 
And now, sir, behold a new and heavenly ally. A woman, 
inspired by Christian genius, enters the lists, like another Joan 
of Arc, and with marvellous power sweeps the chords of the 
pojnilar heart. Now melting to tears, and now inspiring to 
rage, her work everywhere touches the conscience, and makes 
the Slave-Hunter more hateful. In a brief period, nearly 
100,000 copies of Uncle Toni's Cabin have been already circu- 
lated. But this extraordinary and sudden success — surpass- 
ing all other instances in the records of literature — cannot be 
regarded merely as the triumph of genius. Higher far than 
this, it is the testimony of the people, by an unprecedented 
act, against the Fugitive Slave Bill. 

These things I dwell upon as the incentives and tokens of 
an existing public sentiment, which renders this Act practically 
inoperative, except as a tremendous engine of terror. Sir, the 
sentiment is just. Even in the lands of slavery, the slave- 
trader is loathed as an ignoble character, from whom the 
countenance is turned away ; and can the Slave-Hunter be 
more regarded while pursuing his prey in a land of Freedom ? 
In early Europe, in barbarous days, while Slavery prevailed, 
a Hunting Master, nach jag-ender Herr, as the Germans called 
him, was held in aversion. Nor was this all. The fugitive 
was welcomed in the cities, and protected against pursuit. 
Sometimes vengeance awaited the Hunter. Down to this day, 
at Revel, now a Russian city, a sword is proudly preserved 
with which a Hunting Baron was beheaded, who, in violation 
of the municipal rights of this place, seized a fugitive slave. 
Hostile to this Act as our public sentiment may be, it exhibits 
no trophy like this. The State laws of Massachusetts have 
been violated in the seizure of a fugitive slave ; but no sword, 
like that of Revel, now hangs at Boston. 

1 have said, sir, that this sentiment is just. And is it 
not? Every escape from slavery necessarily and instinctively 
awakens the regard of all who love Freedom. The endeavor, 
though unsuccessful, reveals courage, manhood, character. 
No story is read with more interest than that of our own 



70 

Lafayette, when, aided by a gallant South Carolinian, in 
defiance of the despotic ordinances of Austria, kindred to our 
Slave Act, he strove to escape from the bondage of Olmutz. 
Literature pauses with exultation over the struggles of Cer- 
vantes, the great Spaniard, while a slave in Algiers, to regain 
the liberty for which he says, in his immortal work, " we ought 
to risk life itself, Slavery being the greatest evil that can fall 
to the lot of man." Science, in all her manifold triumphs, 
throbs with pride and delight, that Arago, the astronomer and 
philosopher — devoted republican also — was redeemed from 
barbarous Slavery to become one of her greatest sons. Re- 
ligion rejoices serenely, with joy unspeakable, in the final 
escape of Vincent de Paul. Exposed in the public squares of 
Tunis to the inspection of the traffickers in human flesh, this 
illustrious Frenchman was subjected to every vileness of treat- 
ment, like a horse, compelled to open his mouth, to show his 
teeth, to trot, to run, to exhibit his strength in lifting burthens, 
and then, like a horse, legally sold in market overt. Passing 
from master to master, after a protracted servitude, he achieved 
his freedom, and regaining France, commenced that resplen- 
dent career of charity by which he is placed among the great 
names of Christendom. Princes and orators have lavished 
panegyrics upon this fugitive slave ; and the Catholic Church, 
in homage to his extraordinary virtues, has introduced him 
into the company of saints. 

Less by genius or eminent services, than by sufferings, are 
the fugitive slaves of our country now commended. For them 
every sentiment of humanity is aroused : 



" Who could refrain 



That had a h^ art to love, and in that heart 
Courage to make his love known?" 

Rude and ignorant they may be ; but in their very efforts for 
Freedom, they claim kindred with all that is noble in the Past. 
They arc among the heroes of our age. Romance has no 
stories of more thrilling interest than theirs. Classical anti- 
quity has preserved no examples of adventurous trial more 
worthy of renown. Among them are men whose names will 



71 

be treasured in the annals of their race. By the eloquent 
voice they have already done much to make their wrongs 
known, and to secure the respect of the world. History will 
soon lend them her avenging pen. Proscribed by you during 
life, they will proscribe you through all time. Sir, akeady 
judgment is beginning. A righteous public sentiment palsies 
your enactment. 

And now, sir, let us review the field over which we have 
passed. We have seen that any compromise, finally closing 
the discussion of Slavery under the Constitution, is tyrannical, 
absurd, and impotent ; that as Slavery can exist only by virtue 
of positive law, and as it has no such positive support in the 
Constitution, it cannot exist within the National jurisdiction ; 
that the Constitution nowhere recognises property in man, and 
that, according to its true interpretation, Freedom and not 
Slavery is national, while Slavery and not Freedom is sec- 
tional ; that, in this spirit, the National Government was first 
organized under Washington, himself an Abolitionist, sur- 
rounded by Abolitionists, while the whole country, by its 
Church, its Colleges, its Literature, and all its best voices, was 
united against Slavery, and the national flag at that time no- 
whore within the National Territory covered a single slave ; 
still further, that the National Government is a Government 
of delegated powers, and as among these there is no power to 
support Slavery, this institution cannot be national, nor can 
Congress in any way legislate in its behalf ; and, finally, that 
the establishment of this principle is the true way of peace 
and safety for the Republic. Considering next the provision 
for the surrender of fugitives from labor, we have seen that it 
was not one of the original compromises of the Constitution ; 
that it was introduced tardily and with hesitation, and adopted 
with little discussion, and then and for a long period after was 
regarded with comparative indifierence ; that the recent Slave 
Act, though many times unconstitutional, is especially so on 
two grounds — first, as a usurpation by Congress of powers 
not granted by the Constitution, and an infraction of rights 
secured to the States ; and secondly, as a denial of Trial by 



72 

Jury, in a question of Personal Liberty and a suit at common 
law; that its glaring unconstitutionality finds a prototype in 
the British Stamp Act, which our fathers refused to obey as 
unconstitutional on two parallel grounds — ffst, because it 
was a usurpation by Parliament of powers not belonging to 
it under the British Constitution, and an infraction of rights 
belonging to the Colonies ; and secondly, because it was a 
denial of Trial by Jury in certain cases of property ; that as 
Liberty is far above property, so is the outrage perpetrated by 
the American Congress far above that perpetrated by the 
British Parliament ; and, finally, that the Slave Act has not 
that support in the public sentiment of the States where it is 
to be executed, which is the life of all law, and which prudence 
and the precept of Washington require. 

Sir, thus far I have arrayed the objections to this Act, and 
the false interpretations out of which it has sprung. But I am 
asked what I offer as a substitute for the legislation which I 
denounce. Freely I will answer. It is to be found in a 
correct appreciation of the provision of the Constitution, under 
which this discussion occurs. Look at it in the double light 
of reason and of Freedom, and we cannot mistake the exact 
extent of its requirements. Here is the provision : 

" No person held to service or labor in one State, under the laws thereof, 
escaping into another, shall, in consequence of any law or regulation therein, 
be discharged from such service or labor, but shall be delivered up on claim of 
the party to whom such service or labor may be due." 

From the very language employed, it is obvious that this is 
merely a compact between the States, with ^prohibition on the 
States, conferring- no power on the nation. In its natural 
signification it is a compact. According to the examples of 
other countries, and the principles of jurisprudence, it is a 
compact. All arrangements for the extradition of fugitives 
have been customarily compacts. Except under the express 
obligations of treaty, no nation is bound to surrender fugitives. 
Especially has this been the case with fugitives for Freedom. 
In medieval Europe, cities refused to recognise this obligation 
in favor of persons even under the same National Govern- 



73 

ment. In 1531, while the Netherlands and Spain were united 
under Charles V., the Supreme Council of Mechlin rejected an 
application from Spain for the surrender of a, fugitive slave. 
By express compact alone could this be secured. But the pro- 
vision of the Constitution was borrowed from the Ordinance 
of the Northwestern Territory, which is expressly declared to 
be a compact ; and this Ordinance, finally drawn by Nathan 
Dane, was again borrowed in its distinctive features from the 
early institutions of Massachusetts, among which, as far back 
as 1643, was a compact of like nature with other New England 
States. Thus this provision is a compact in language, in 
nature, in its whole history ; as we have already seen it is a 
compact, according to the intentions of our Fathers and the 
senius of our institutions. 

As a compact, its execution depends absolutely upon the 
States, without any intervention of the Nation. Each State, 
in the exercise of its own judgment, ivill determine for itself 
the precise extent of the obligations assumed. As a compact in 
derogation of Freedom, it must be construed strictly in every 
respect — leaning always in favor of Freedom, and shunning 
any meaning, not clearly necessary, which takes away impor- 
tant personal rights ; mindful that the parties to whom it is 
applicable are regarded as "persons," of course with all the 
rights of " persons " under the Constitution ; especially mindful 
of the vigorous maxim of the common law, that " he is cruel 
and impious who does not always favor Freedom ; " and also, 
completely adopting in letter and in spirit, as becomes a just 
people, the rule of the great Commentator, that " the law is 
always ready to catch at any thing in favor of Liberty." 
With this key the true interpretation is natural and easy. 

Briefly, the States are prohibited from any "law or regu- 
lation" by which any "person" escaped from "service or 
labor " may be discharged therefrom, and on establishment of 
the claim to such "service or labor," he is to be "delivered 
up." But the mode by which the claim is to be tried and 
determined is not specified. All this is obviously within the 
control of each State. It may be done by virtue of express 
legislation, in which event any Legislature, justly careful of 
7 



74 

Personal Liberty, would suiTomid the fugitive with every 
shield of the law and Constitution. But here a fact, pregnant 
with Freedom^ must be studiously observed. The name Slave 
— that litany of wrong and woe — does not appear in the 
clause. Here is no unambiguous phrase, incapable of a 
double sense ; no " positive " language, applicable only to 
slaves, and excluding all other classes; no word of that abso- 
lute certainty in every particular, which forbids any interpreta- 
tion, except that of Slavery, and makes it impossible "to catch 
at any thing in favor of Liberty." Nothing of this kind is 
here. But passing from this, " cruelly and impiously " re- 
nouncing for the moment all leanings for Freedom; refusing 
'• to catch at any thing in favor of Liberty;" abandoning the 
cherished idea of the Fathers, that " It was ivrong- to admit in 
the Constitution the idea of property in man;" and, in the 
face of these commanding principles, assuming two things, 
first, that, in the evasive language of this clause, the Conven- 
tion, whatever may have been the aim of individual members, 
really intended fugitive slaves, which is sometimes questioned, 
and, secondly, that, if they so intended, the language employed 
can be judicially regarded as justly applicable to fugitive 
slaves, which is often and earnestly denied ; then the whole 
proceeding, without any express legislation, may be left 
to the ancient and authentic forms of the common law, 
familiar to the framers of the Constitution and ample for the 
occasion. If the fugitive be seized without process, he will 
be entitled at once to his Avrit de Homine Repleg-iando, wlnle 
the master, resorting to process, may find his remedy in the 
WTit de Nativo Hahendo — each writ requiring Trial by Jury. 
If from ignorance or lack of employment these processes have 
slumbered in our country, still they belong to the great arsenal 
of the common law, and continue, like other ancient writs, 
tanqiiam g-ladium in vagina, ready to be employed at the first 
necessity. They belong to the safeguards of tlie citizen. But 
in any event and in either alternative the proceedings would 
be by " suit at common law, " with Trial by Jury ; and it 
would be the solemn duty of the court, according to all the 
forms and proper delays of the common law, to try the case 



75 

on the evidence ; strictly to apply all the protecting rules of 
evidence, and especially to require stringent proof, by com- 
petent witnesses under cross-examination, that the person 
claimed was held to service ; that his service was due to the 
claimant ; that he had escaped from the State where such ser- 
vice was due ; and also proof of the lavjs of the State under 
which he was held. Still further, to the Courts of each State 
must belong the determination of the question, to ivhai classes 
of persons, according- to just rules of interpretation, the phrase 
^^ persons held to service or labor " is strictli/ applicable. 

Such is this much-debated provision. The Slave States, at 
the formation of the Constitution, did not propose, as in the 
cases of Naturalization and Bankruptcy, to empower the Na- 
tional Government to establish an uniform rule for the rendi- 
tion of fugitives from labor, throughout the United States ; 
they did not ask the National Government to charge itself in 
any way with this service ; they did not venture to offend the 
country, and particularly the Northern States, by any such 
assertion of a hateful right. They were content, under the 
sanctions of compact, to leave it to the public sentiment of 
the States. There, I insist it shall remain. 

INIr. President, I have occupied much time ; but the great 
subject still stretches before us. One other point yet remains, 
which I should not leave untouched, and which justly belongs 
to the close. The Slave Act violates the Constitution and 
shocks the Public Conscience. \V¥ith modesty and yet with 
firmness let me add, sir, it offends against the Divine Law. 
No such enactment can be entitled to support. As the throne 
of God is above every earthly throne, so are his laws and 
statutes above all the laws and statutes of man. To question 
these, is to question God himself. But to assume that human 
laws are beyond question, is to claim for their fallible authors 
infallibility. To assume that they are always in conformity 
with those of God, is presumptuously and impiously to exalt 
man to an equality with God. Clearly human laws are not 
always in such conformity ; nor can they ever be beyond 
question from each individual. Where the conllict is open, as 



76 

if Congress should command the perpetration of murder, the 
office of conscience as final arbiter is midisputed. But in 
every conflict the same Queenly office is hers. By no earthly 
power can she he dethroned. Each person, after anxious 
examination, without haste, without passion, solemnly for 
himself must decide this great controversy. Any other rule 
attributes infallibility to human laws, places them beyond 
question, and degrades all men to an unthinking passive 
obedience. 

According to St. Augustine, an unjust law does not appear 
to be a law ; lex esse non videtur qua justa non fiierit ; and 
the great fathers of the Church, while adopting these words, 
declare openly that unjust laws are not binding. Sometimes 
they are called " abuses, " and not laws ; sometimes " vio- 
lences, " and not laws. And here again the conscience of 
each person is the final arbiter. But this lofty principle is not 
confined to the Church. A master of philosophy in early 
Europe, a name of intellectual renown, the eloquent Abelard, 
in Latin verses addressed to his son, has clearly expressed the 
universal injunction : 

Jussa potestatis terrenae discutienda 

Coelestis tibi mox perficienda scias. 
Siquis divinis jubeat contraria jussis 

Te contra Dominum pactio nulla trahat. 

The mandates of an earthly power are to be discussed; 
those of Heaven must at once be performed ; nor can any 
agreement constrain us against God. Such is the rule of 
morals. Such, also, by the lips of judges and sages, has been 
the proud declaration of the English law^, whence our own is 
derived. In this conviction patriots have fearlessly braved 
unjust commands, and martyrs have died. 

And now, sir, the rule is commended to us. The good 
citizen, as he thinks of the shivering fugitive, guilty of no 
crime, pursued, hiuited down like a beast, while praying for^ 
Christian help and deliverance, and as he reads the require- 
ments of this act, is filled with horror. Here is a despotic 
mandate, " to aid and assist in the prompt and efficient ex- 



77 

ecution of this law." Again let me speak frankly. Not 
rashly would I set myself against any provision of law. This 
grave responsibility I would not lightly assume. But here 
the path of duty is clear. By the Supreme Law, which com- 
mands me to do no injustice ; by the comprehensive Christian 
Law of Brotherhood; hy the Constitution, vMchJhave sworn 
to support ; I am bound to disobey this act. Never, in any 
capacity, can I render voluntary aid in its execution. Pains 
and penalties I will endure ; but this great wrong I will not 
do. " I cannot obey ; but I can suffer, " was the exclamation 
of the author of Pilgrim's Progress, when imprisoned for 
disobedience to an earthly statute. Better suffer injustice than 
do it. Better be the victim than the instrument of wrong. 
Better be even the poor slave, returned to bondage, than the 
unhappy Commissioner. 

There is, sir, an incident of history, which suggests a parallel, 
and affords a lesson of fidelity. Under the triumphant exer- 
tions of that Apostolic Jesuit, St. Francis Xavier, large 
numbers of the Japanese, amounting to as many as two 
hundred thousand — among them princes, generals, and the 
flower of the nobility — were converted to Christianity. After- 
wards, amidst the frenzy of civil war, religious persecution 
arose, and the penalty of death was denounced against all 
who refused to trample upon the effigy of the Redeemer. 
This was the Pagan law of a Pagan land. But the delighted 
historian records that scarcely one from the multitude of con- 
verts was guilty of this apostasy. The law of man was set at 
naught. Imprisonment, torture, death, were preferred. Thus 
did this people refuse to trample on the painted image. Sir, 
multitudes among us will not be less steadfast in refusing to 
trample on the living image of their Redeemer. 

Finally, sir, for the sake of peace and tranquillity, cease to 
shock the Public Conscience; for the sake of the Constitution, 
cease to exercise a power which is nowhere granted, and 
which violates inviolable rights expressly secured. Leave this 
question where it was left by our fathers, at the formation of 
our National Government, in the absolute control of the 
States, the appointed guardians of Personal Liberty. Repeal 



78 

this enactment. Let its terrors no longer rage through the 
land. IVIindful of the lowly whom it pursues ; mindful of the 
good men perplexed by its requirements ; in the name of 
charity, in the name of the Constitution, repeal this enact- 
ment, totally and without delay. Be inspired by the example 
of Washington. Be admonished by those words of Oriental 
piety — " Beware of the groans of the wounded souls. Op- 
press not to the utmost a single heart ; for a solitary sigh has 
power to overset a whole world." 



^ 

^ 



FREEDOM NATIONAL ; SLAVERY SECTIONAL. 



MR. SUMNER'S SPEECH 



FOR THE 



REPEAL OF THE FUGITIVE SLAYE BILL. 






^ 



LBJa'!3 



LIBRftRY OF CONGRESS 



011 898 577 1 



